Tag: mike masnick

As DMCA Review Gets Real, Anti-Copyright Rhetoric Gets More Surreal

Among the reasons I defend copyright is that I firmly believe it is inadvertently one of the most profound expressions of democratic principles in the American Constitution. When the Framers essentially transposed English copyright into Article I of the Constitution, they could not possibly have imagined the full value—cultural, economic, and political—of vesting authors, with both the moral and pecuniary rights that would be embodied in copyright law. But as much as I will eagerly advocate those rights, I will not betray broader principles to achieve that goal. If the current precariousness of the Republic should remind us of one lesson above all, it is that, in America, means remain vastly more important than ends.

Sadly, too many Americans across the political spectrum have broken faith with that principle, including those who would weaken, or even destroy copyright. For instance, Techdirt founder Mike Masnick appears to be a Democrat (based on his tweets and other writings), and is certainly not a Trumpian. Nevertheless, the site he edits published a post on November 18 by Daniel Takash that begins as follows:

I’m certainly not the first person (especially on Techdirt) to point out that if conservatives are really concerned about online censorship, they should be putting copyright law under the microscope, rather than, or at least in addition to, Section 230.

This is what happens when someone cares more about a specific agenda than they do about the broader, moral implications of how they advocate that agenda. Here, Techdirt is so determined to blast copyright law that it publishes a post in which Takash gives credence to the false narrative that social platforms have been censoring conservative views. As I have argued in several posts, this accusation only has merit if one’s definition of “conservative” is an ideology of lies and wild conspiracy allegations that undermine the rule of law, basic decency, and public safety. That is a stigma the GOP is going to have to resolve as the Trump effect (we can only hope) begins to wane, but at the moment, it is a dangerous narrative that should not be given air in the service of any policy goal. Period.

Noting that the discussion about Section 230 emanating from the White House, and oozing into congressional hearings, can best be described as incoherent and futile, Takash is effectively asking that the same kind of inarticulate vitriol be slung at copyright law in the name of “conservatism.” His post alludes generally to “Trump’s troubles” with the use of copyrighted works in campaign videos and rallies, as if to imply first, that rightsholders have no interest in how their works are used; and second, that the use of works in political statements is not a complex issue. Instead, Takash simply invites “conservatives” to adopt the view that copyrights are tantamount to censorship.

Maintaining sound copyright laws has enjoyed bipartisan support throughout the history of the country, and many of its strongest advocates have been Republicans. One of my favorite colleagues with whom I regularly discuss copyright is a lifelong Republican, and the fact that we approach policy from different ideologies only adds to the richness of the conversation. That’s the way Congress used to work (at least more than it does now), and in the tiny, obscure world of copyright law, it still works that way—a bipartisan conversation in which nearly every Member agrees with the premise that American creators are essential and that copyright law is a constitutional principle that has capably stood the test of time.

Section 230 should be reviewed soberly and rationally—not because it shields platform “censorship,” but because it shields criminal conduct that destroys, or nearly destroys, people’s lives. But that has nothing to do with copyright law, which is being reviewed appropriately and apolitically. In contrast to the Section 230 noise that has lately rumbled on Capitol Hill, the review of the Digital Millennium Copyright Act (DMCA), led by Chairman Tillis of the Senate Judiciary Committee has been orderly, rational, and not in any way subsumed by the political circus that has distorted a wide range of other policy matters.

Last week, Chariman Tillis published an open letter asking stakeholders to provide input for potential revision to the DMCA. Comments are due on December 1, and after review of that input, the committee is expected to present draft legislation on December 18. The Tillis letter poses fifteen questions spanning many topics for consideration. These points summarize the findings by the committee after its yearlong process hosting hearings and conducting internal review into whether the DMCA has fulfilled its purposes as Congress intended 22 years ago. The topics in the letter also echo the Copyright Office report on Section 512 of the DMCA, which recommends the law should be updated.

As most readers know, copyright owners, especially small and independent owners, have told both House and Senate Judiciary Committees that DMCA Section 512 does not come anywhere close to working as intended. The statute, which provides conditional immunity for online service providers that unintentionally host copyright infringing material, has been a complete failure for the independent creator, and extraordinarily burdensome for the institutional copyright owner.

The day-to-day reality of implementing Section 512 betrays Congress’s expressly stated anticipation that OSPs and rightsholders would collaborate to keep infringement down to a manageable scale. Instead, the immunity provided by the statute has functioned as a disincentive for OSPs to mitigate infringement, thereby allowing some of the biggest companies in the world to profit from infringement at a scale worth billions of dollars over the past two decades.

Because Section 512 shares a core principle with Section 230 (i.e. the premise that the OSP should not be liable for the conduct of its users), the two statutes are often conflated in the blogosphere, and occasionally confused by the press, which might carelessly refer to 230 and copyright in the same sentence. But because the two provisions grant different types of legal immunity to some of the most powerful companies on Earth, another attribute they share is that Big Tech will spare no expense defending the status quo of both laws. And in that endeavor, they can be counted upon to exploit all the confusion they can muster. This is the simplest explanation for Takash’s illogical (and frankly immoral) appeal to “conservatives” to embrace a copyright is censorship ideology.

As legislative proposals become available, I will follow up with commentary on the nuts-and-bolts in that process. But as a preliminary observation, it is hard to imagine that at least some revision to 512 will not be proposed, and creators should be prepared for Silicon Valley’s network of anti-copyright proxies to launch a well-funded assault to defend the territory it has so effectively usurped.

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.

Does Masnick Not Know That The Public Is Not An Online Service Provider?

Signaling one of the talking points I expect we’ll be seeing quite often as the DMCA fight brews—and it is brewing—Mike Masnick and others have declared that the Copyright Office, in its newly released report on DMCA Section 512, neglected to include the public among the stakeholders with a vested interest in the 1998 addition to the copyright law. In his first post on the topic, Masnick asks rhetorically Does the U.S. Copyright Office Not Know That Copyright’s Main Stakeholders Are The Public? Never mind that this is a retread of an unsupportable theme of his, but the premise sets up a false dichotomy that will be used as a pretense to campaign for the status quo of Section 512 — especially because the USCO has recommended a few areas for possible revision.

Let us first keep in mind that we, the public, are always the beneficiaries (or not) of policies relating to the interests of both copyright owners and online service providers (OSPs). Or, as my friend Neil Turkewitz puts it, “The public interest is always affected by decisions made by private actors. Indeed, it’s fair to observe that the public interest is itself a contrivance, and represents the constellation of interests of individual members of the public.”

We enjoy the benefits created by internet platforms just as we enjoy the works produced by rightsholders. Because the public interest is intertwined with the interests of both sides in this narrative, the legislative history (despite what Masnick claims) does not point to a triad of stakeholders in which the public is one prong. The DMCA was negotiated by two sides (both representing large, corporate interests) hammering out a deal in the late 1990s, at a time when nobody could have predicted how the consumer-based internet might evolve.

On the OSP side, when AT&T and the other telcos sought a shield against liability for the inevitable copyright infringements by the public, the primary rationale (and a reasonable one) was that investors would shun internet prospects if the service providers would be vulnerable to expensive and ongoing litigation. These companies did not lead with homilies on free speech or the fair use exception in copyright law. It was about business. So, let us not be blinded by the fallacy of presentism. When the Copyright Office says that 512 was intended to balance two competing interests—rightsholders and OSPs—that statement is neither inaccurate nor indicative of a disregard for the public.

One reason I imagine we will be hearing this rhetorical accusation about the allegedly missing public is that it softens the ground for declarations like this one:  “… the report mainly focuses on large internet providers liking the safe harbors, and copyright holders wanting it to be worse…and then claims that since only one side is ‘upset’ clearly that means things are out of balance,” writes Masnick. See what’s happening there?

By pretending that Section 512 is not the result of a two-sided arrangement, Masnick is able to make a mathematically impossible statement, implying that when one side of an agreement feels it isn’t working, this is somehow not evidence of an imbalance. Even if one has contempt for a particular side—and I think copyright critics’ contempt for authors is a matter of record at this point—if one side says an agreement is not working, this is the definition of “unbalanced.” Further, the implication that 512 is working just fine for the public is political theater. Not only could most of the public likely not explain what Section 512 does, but the public also does not enjoy any kind of liability shield under the terms of the DMCA.

It is frankly disingenuous to suggest that the public is ever represented as a whole constituency. And it is as arrogant as it is futile when people like Masnick presume to speak for the public. Which public would that be exactly? Are millions of creators of copyrighted works not part of the public? What about the millions of people whose livelihoods are dependent upon the creative industries? Or what about the public that simply enjoys creative works, which is pretty much everybody? John and Jane Q Public are not nearly so confused about the relationship between copyright and the works they enjoy as many critics like to suggest. And the conflicts inherent to Section 512 were, and remain, conflicts between rightsholders and online service providers. Period.

It is not wrong to maintain that the public has an interest in the implementation of Section 512, and in future posts, I’ll get into some of the proposed amendments that may or may not be considered by Congress. But because those forces hellbent on maintaining the status quo of 512 decided, as a first volley, to lob this allegation that the public was overlooked by the Copyright Office, I will insist that this is neither supported by the content in the report, nor remotely instructive to the purpose of legislative review.

Meanwhile, as long as Masnick et al insist upon conflating the public interest with that of the OSPs, we might want to keep in mind that the public has not exclusively benefitted from the catalytic effects of internet platforms over the last 20 years. We don’t see any headlines saying Songwriters Sell User Data to Troll Farms or Photographers Tied to Election Fraud or Poets Fueling White Supremacy Worldwide. Which force is more responsible for InfoWars, copyright or YouTube?

I know. Don’t blame the internet for every problem in the world. But a little common sense is called for, no? Is it a coincidence that platform expansion is concurrent with rampant ignorance raging through Western civilization like a forest fire? Huge swaths of the public are evidently so howling-at-the-moon stupid (thank you Aaron Sorkin for the expression) that they are willing to believe anything. So, I think we have reasonable cause to look askance at the dawn of the so-called information age and ask where we went wrong.

In that spirit, let us also remember that the purpose of copyright, as expressed in the constitutional clause, is to “promote science.” While “science” has long since been expanded to encompass the creative arts, the notion of enlightenment still lives in the doctrines of copyright. And to the extent the Copyright Office seeks to preserve that principle, it is unquestionably serving the public.