Tag: Trump

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.

Internet Association asks Trump to keep sticking it to creators.

ia-letter

On Monday, the Internet Association, which represents most of the major online platforms, sent a letter to the president-elect asking that his administration show support for the the status quo of the CDA and the DMCA in order to sustain “innovation and free expression” online.  But for the date and the name Trump, the letter is a boilerplate industry position arguing that the OSPs’ limited-liability for actions like copyright infringement is the reason we consumers enjoy all the prosperity being fostered by the internet.  Of course, I am moved to ask, even in a reluctant spirit of bipartisanship, what prosperity?

Setting aside all the vitriol and hate-speak for a moment (and it is very hard to set aside), the primary rationale voters cited in the exit polls for their votes was a “Desire for change.” So many Americans are apparently feeling anxious about their economic prospects that they are literally grasping at straws at this point.  In this regard, both parties are guilty of dissembling on the promise to “bring jobs back” when speaking to working-class voters—projecting a false image of middle-class, manufacturing jobs returning while simply ignoring the reality of automation. Even if a new factory is built in Pennsylvania, it’s mostly going to be run by robots.

Meanwhile, the internet industry is asking the presumptive change agent that is the president-elect to support the entrenchment of 20-year-old statutes that have failed to produce anything like middle-class, economic prosperity to replace what those statutes have actually cost us.  As the letter to Trump states …

“Intermediary liability laws and policies protect free speech and creativity on the internet. This, in turn, generates substantial value for our economy and society through increased scale, greater diversity, and lowered barriers to entry for creators and entrepreneurs.” 

That sounds very pretty, but where’s the beef?  We can count the money that no longer goes into the pockets of authors, music makers, filmmakers, photographers, journalists, etc. And we can count the supporting jobs and businesses those industries no longer sustain; but where is the middle-class prosperity that’s replacing those losses—all that “substantial value for our economy” the internet industry keeps talking about?  Because if people have been enjoying that prosperity, then why all the economic anxiety?  What about the millions of voters who were on the fence about Trump but are simply so worried about dwindling economic opportunity that they figured some change—any change—was worth a shot?

The internet industry is still selling roulette economics dressed up as entrepreneurism and using that pitch to justify stealing economic value from hard-working creators. I know the internet industry largely campaigned against Trump because they personally view themselves as progressives, but from a policy perspective with regard to issues like DMCA safe harbors, I’m surprised the Internet Association wouldn’t have expected a casino owner to be an ideal ally to their way of viewing the economy.  After all, the YouTube version of “prosperity” is exactly the same as a casino. A handful of big winners makes new creators forget that most who try will lose while the house always wins. They dangle stories like PewDiePie just like golden dollar signs in a casino to convince creators there is a new way to “make it” in a market where they no longer need to care about owning the rights to their work.

Maybe it’s time for the leaders in Silicon Valley to do some soul-searching and decide whether they truly care to benefit people the way they keep claiming they do; or if they just want to protect their bottom line.  There are members of the Internet Association who are more pragmatic about finding common ground with authors and creators, some who are more willing to sit down and discuss practical and voluntary solutions to solve challenges like mass infringement and other exploitations of creative work.

Other members are less inclined to this approach, given to protectionist responses and divisive PR aimed at creators seeking voluntary and legislative measures to mitigate mass infringement.  But these folks should make up their minds.  You can’t be for the people and be anti-individual rights at the same time; and the right to protect one’s ownership in expressive works is an individual right. In fact, it happens to be the first individual right mentioned in the Constitution.  Time for Silicon Valley to put down its playbook and think more humanely about the future.