Tag: techdirt

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.

Masnick Calls CASE a Big Media Bill?

From the Techdirt Sycophants Department

In his post of May 28, Mike Masnick dutifully opened his hymnal and joined the chorus in a rendition of “How to Criticize the CASE Act,” lending his bel canto to the refrain that the new law would create a “copyright trolling court.”  As explained here and here, this is an inscrutable criticism because the Copyright Claims Board will actually be a lousy venue for copyright trolls—principally because it is a voluntary resolution option.  But if you don’t believe me about that, Mike’s further implication that CASE is a Big Media proposal and the product of “soft corruption,” is so transparently illogical that you may dismiss the allegation by applying a modicum of common sense.

Wanting readers to believe he speaks truth to power, Mike employs a little misdirection with the following innuendo about two of the bill’s lead sponsors:

“We should note, that the House bill is sponsored by Rep. Hakeem Jeffries, along with Jerry Nadler. You may recall that those two Congressman were recently seen hosting a giant $5k per ticket fundraiser at the Recording Industry’s biggest party of the year, the Grammys. And, right afterwards, they suddenly introduce a bill that will help enable more copyright trolling? Welcome to the world of soft corruption.”

Yes, that’s what happened.  The CASE Act was drafted on the back of a napkin at the Grammys party. (Stand by for Mike to accuse me of straw man because he did not literally say this.)

In Reality Land, I suppose we can ignore the fact that a small claim copyright proposal has been floating around Capitol Hill longer than Rep. Jeffries has been a Member of Congress—and, for that matter, longer than the bill’s other main sponsor Rep. Doug Collins of Georgia.  But I guess Collins wasn’t at the Grammys and so doesn’t fit Masnick’s conspiratorial narrative?  We might also ignore the fact that CASE has solid bi-partisan support, even from Silicon Valley Rep. Zoe Lofgren, and that the only effective (albeit unreasonable) opposition in the last two or so years has come from the Internet Association and the Computer and Communications Industry Association.  But what readers should not ignore is their own basic ability to reason, which ought to sound something like this …

BIG MEDIA COMPANIES DON’T GIVE A DAMN ABOUT COPYRIGHT SMALL CLAIMS.

Mike’s implication that Jeffries and Nadler partied with the RIAA and “suddenly” introduced a bill is just wrong as a matter of public record, but even if nobody wants to bother looking that up, you might then ask what possible interest major record labels or movie studios or any other Big Media companies have in creating a voluntary, small-claim, alternative-dispute provision for copyright infringement?  As Mike himself is very fond of reminding people, these are powerful corporate entities with high-octane attorneys on staff.  There is nothing in the CASE Act for these companies.

I know it’s hard to fathom, but the CASE Act is a rare example of bi-partisan legislation designed for regular people—middle-class creators who have almost no affordable path to remedy unlicensed uses of their works.  And thanks in no small part to tech-evangelists like Techdirt, online infringement is both rampant and misconceived as acceptable, even by commercial users who ought to know better. 

Mike should go back through all the articles and public statements he’s ever made on the theme that he “supports creators” but wants “balanced copyright” and feel obliged to eat every one of those words.  CASE is about balancing copyright.  It proposes to level the playing field for little guys who are getting clobbered by the policies and practices of the tech giants, which only makes Mike’s implication that it’s a Big Media bill all the more offensive.  I know attorneys who think CASE might not work, which is at least thoughtful criticism based on its actual mechanisms, but misrepresenting the Copyright Claims Board as a processing center for invalid damage awards is just mean-spirited considering the kind of people it is designed to help.

At this point, it would be grand if Mike and the legal pundits who write the songbooks from which he so often sings would just admit they don’t like copyright and will vigorously oppose any kind of enforcement no matter what.  That would at least be honest.  Still obnoxious, but not patently absurd.

Don’t Blame Internet Culture on Copyright

In response to a recent social media dustup, Mike Masnick writes on Techdirt, “…we’ve got quite a story today about how copyright is a total mess and not really fit for the way the internet works today.”

To his credit, Masnick does a solid job describing both the circumstances and the legal mechanisms relevant to a conflict that arose when a media company called Barstool Sports published a video made by writer/performer Miel Bredouw without permission, even posting the work as though it were their property.  But I disagree with Masnick that this is a tale about why copyright is a “total mess” because it’s really a tale about why social media is a total mess with a twist—that when anti-copyright pundits describe weaknesses in the law, they may inadvertently point to how it can be strengthened.  In fact, the lessons to be learned from this anecdote are instructive in ways I’m not surprised Masnick overlooked because, as I see it, this is a tale of two appropriations, and the contrasts between them are significant.

To recap as briefly as possible, Bredouw had an afflatus.  She noticed that the lyrics to “Slob on My Nob” by Three 6 Mafia fit rather neatly into the melody “Carol of the Bells” and decided to demonstrate this by recording herself performing the musical mashup in a brief video she posted to her YouTube channel.   Barstool Sports—run by a group of dudes who seem to be universally recognized as assholes—published Bredouw’s video to their Twitter account as though it were their own (i.e. uncredited).  When Bredouw asked that they credit her, she was ignored and so responded by submitting a DMCA takedown notice to have the video removed.  Twitter processed the notice and removed the video, and then Barstool got bitchy.

Apparently not the company’s first copyright strike, and seemingly fearful that their account could be terminated, Barstool sought to convince Bredouw to rescind her takedown notice by engaging in a fairly typical evolution of behavior, escalating from apologizing to begging to harassing her on all her social media accounts with bro-fans insisting that she stop ignoring Barstool’s demands for resolution.  At the begging stage, Barstool even offered Bredouw $2,000, which she waved at on principle.  

Thus, Barstool took its only course of action to mitigate the copyright strike and filed a (technically invalid) DMCA Counter Notice.  By statute, the counter-notice procedure requires that a platform restore an allegedly-infringing file within 10 days, unless the copyright owner provides proof that they have proceeded with legal action against the alleged infringer.  

Clearly, an underlying factor in this case is that Bredouw did not (and would never) register a copyright in her brief video performance; but that doesn’t make the story any less instructive.  At the same time, it should be noted that were this a conflict that could lead to litigation, Barstool Sports would very likely be held to have violated the law under penalty of perjury when it filed an invalid counter-notice to restore a video it had no reason to claim was removed in error.  

A Tale of Two Appropriations

It is a fun fact that tech pundits, including Masnick, have spent years attacking copyright on behalf of appropriations like those made by Bredouw while ignoring the much more problematic appropriations like the one made by Barstool.  Bredouw made use of two creative works* and combined these in a recorded performance that, under slightly different circumstances, would likely be considered fair use as a parodic commentary on both works and distributed in a manner that is not likely to cause harm to the market value of either work.  In short, it is the kind of creative expression the anti-copyright crowd loves to cite anecdotally as evidence that, “on the internet we are all creators,” meaning that people like Bredouw should not be targets of takedowns.

But the thing is that most copyright owners do not have a problem with uses like Bredouw’s video.  They often enjoy these mashups and parodies; and even when they don’t like them, many copyright owners are well-enough informed about fair use to let such uses remain online without response.  But the outright theft of material made by a commercial enterprise, like Barstool simply taking Bredouw’s video, is exactly the kind of appropriation that tens of thousands of copyright owners have a huge problem addressing online.  Just ask any composer or professional photographer how often they find a business entity using their work, without license, for marketing purposes.

Meanwhile, inasmuch as Masnick is willing to call the dudes at Barstool a bunch of asshats, he does not take any responsibility for playing a substantive role in evangelizing the very culture that results in their behavior.  The anti-copyright, sharing-is-caring, everybody’s-a-creator-now bullshit that Techdirt, the EFF, et al have been slinging into the atmosphere for years is constituent to the fact that even mainstream, commercial operators feel entitled to just take creative works and tell authors to go screw themselves.  In general, the copyright critics have been claiming to speak for the Bredouws of the web while (perhaps inadvertently) empowering the Barstools all along.  

So, one simple response to this type of appropriation is a change to the internal culture and practices of business enterprises.  If Barstool found itself inching toward account termination for accumulating too many copyright strikes, one solution would be to stop using material they know is not theirs! (No doubt there’s a sports analogy that would explain the concept.) But of course copyright owners cannot rely on commercial users to just do the right thing.  So, then what?

Well, oddly enough, Masnick provides one clue when he writes, “But what if it’s the counternotice that’s bogus? That’s… trickier. As the law is set up, then the only response is to sue.”  He’s absolutely right.  The counter-notice procedure, as it stands, leaves small and independent copyright owners with a nearly-toothless remedy in the DMCA; so perhaps this is one area of the 1998 statute that is overdue for revision.  For example, if a platform is allowed to review and reject a takedown request that looks illegitimate, why can’t it do the same thing with a counter-notice?  

That said, while I would disagree with Masnick’s use of the term “total mess” in this case, he is correct to imply that neither copyright law in general, nor the DMCA in particular, can adequately protect the limited scope of authorship entailed in Bredouw’s small video against a corporate entity’s smug appropriation of her work.  The DMCA simply was not written to anticipate small-scale appropriation of works that authors would never register for copyright.  And while it is admittedly not easy to develop an ideal—let alone universal—solution to address this strata of infringement, that is no excuse to call copyright wholly incompatible with “the way the web works today,” as Masnick claims.  

To the contrary, the way the web works today for countless copyright owners, whose works are registered, is that the DMCA is a game of chicken the rights holder plays with the infringer in which the latter often assumes that the former lacks the resources to sue.  Meanwhile, the major platforms have reaped the rewards while pundits like Masnick have told the rights holders to “quit whining and embrace the future.”  

Really?  Because stay tuned.  The conversation about “the future” is already shifting from the appropriation of someone’s video or song or photograph to Silicon Valley’s disruption of food, medicine, transportation, infrastructure, etc.  So, maybe if we fix (meaning strengthen) copyright enforcement online, that policy process will provide some clues as to how we might avoid careening into a state of technological feudalism.  

*For the purpose of this discussion, the copyright status of “Carol of the Bells” is irrelevant. 

Also see Rick Sanders’s post.