The EFF Taking on Big Tech?

Last week, CreativeFuture CEO Ruth Vitale wrote a post wondering whether she had stepped into a parallel universe upon reading a June 27 missive by the EFF’s Mitch Stoltz. Related to my last post on the theme of tech-utopians doing policy pirouettes in the current climate we call the “techlash,” Stoltz declared Big Tech too big, with “extraordinary power to censor and surveil.” Really? Welcome to the resistance, Mitch.

I know what Vitale means of course. The EFF has consistently endorsed policies that bolster the interests of Big Tech, namely internet companies, so Stoltz’s post does look like a staggering about-face begging for a jab in the ribs.  But taking his statement at face value, Stoltz’s main point is that the lack of competition in the internet market is dangerous, and he primarily advocates a re-invigorated approach to antitrust law as a solution. He writes…

“Restraining Internet giants’ ability to squash new competitors can help allow new services and platforms to arise, including ones that are not based on a surveillance business model. We also need new ways to measure and describe the harms of censorship and loss of privacy as a basis for antitrust analysis. Where these harms flow from abuse of monopoly power, or improper attempts to gain or maintain such power, regulators may need to consider breaking up companies as well.”

While I don’t see anything wrong with the EFF throwing its resources behind antitrust action against any big tech corporation, where it’s appropriate, I still maintain that certain web platforms are natural monopolies for which is there no public policy solution. Ain’t none of us got time for two Facebooks, so Facebook will retain its dominant position unless we all either migrate en masse to a platform we like better, or just bail on these types of platforms because we lose interest. In general, I suspect the challenges inherent to consolidation, combined with the prospects of automation, are far more complex and unprecedented than anything antitrust law was ever designed to address. But that’s another topic for another day.

Taking on Big Tech?  Really?

Meanwhile, a subsection of Stoltz’s post caught my attention because he mentioned that among the legislative reforms necessary to mitigate corporate dominance by the majors is Section 1201 of the DMCA. These are the statutes which provide for technical protections of copyrighted material and prohibit tampering with those protections for the purpose of infringing copyrighted material. But in the context of Stoltz’s new post, it has to be noted that the EFF in particular has advocated policy views on Section 1201 which, in some cases, would amount to a gift to Google—one of the aforementioned “too big” corporations Stoltz now says needs to be reined in.

For instance, in the Summer of 2016, there was a big row over the FCC’s proposal known as the “Set Top Box” Rule. If passed, it would have forced the TV cable companies to make programming and data available to third-party manufacturers of new boxes—naturally Google was in the lead among these—they would sell to consumers. The problem for TV producers was that the programming would, by federal mandate, have been made available to Google et al without any kind of licensing regime, thus bypassing the complex network of licensing among producers and distributors of TV programming that actually gets the show-makers paid.

The EFF, specifically Stoltz, declared that the proposed FCC Rule had “nothing to do with copyright” despite the fact that the proposal had a lot to with copyright, including the implication of Section 1201 because the current cable boxes we use are one form of technical protection of all those licensing deals that result in TV shows getting made.

Meanwhile, this “nothing to do with copyright” message re. the TV boxes was articulated by the EFF at about the same time that the organization filed suit against the government to have the entire statute declared unconstitutional. The EFF has a longstanding beef with 1201 (which is not without flaws), but both the EFF lawsuit and its public messaging on the subject tends to omit a considerable amount of complexity in the issue, seeking to draw readers toward the talking point that “copyright is standing in the way of…innovation, safety, consumer fairness, etc.”

That was essentially how the “Set Top Box” narrative was portrayed, even though it cannot be denied that passage of the FCC Rule would have been a major gift to Google, expanding both its market presence and its capacity to exploit what Stoltz described above as a “surveillance business model.” All while exploiting billions of dollars worth of programming without paying a cent in license fees.

Declaring 1201 Unconstitutional

In the Summer of 2016, when the EFF announced this litigation, I wrote a long post describing why I believed their case against 1201 was flawed—or at least why it was portrayed over-simply for public consumption. In general, complaints about this section of the DMCA seep into public perception as a prohibition against fixing our own cars or other devices because 1201 prohibits tampering with the tech that protects the software that runs so many products today. And then copyright in general gets a bad rap, which groups like EFF are happy to exploit in their messaging.

In fact, during that same period, PublicKnowledge launched an all-out smear campaign against the USCO, and then register Pallante, in part accusing the agency of favoring rightsholders with regard to its triennial Rulemaking process, which considers exemptions to 1201 protections for petitioners who file requests. In that case, PK actually vilified the USCO for deferring to other federal agencies that have an interest—in fact a more acute interest—in device tampering than copyright owners.

As explained my post at the time, the Register’s report revealed the opposite attitude of which it was accused—that not only was the USCO highly sympathetic to “good-faith researchers” seeking exemptions, but that the major hurdles to some of the exemptions being sought came from agencies outside the purview of the Copyright Office, including the Environmental Protection Agency, the Department of Transportation, and the Department of Justice. Suffice to say, the subject of device tampering is not simply a DMCA issue, and the DMCA is often a minor player in a bundle of regulations designed for consumer protection, environmental protection, etc. As a June 28, 2018 letter from DOJ counsel recommending some amendment to 1201 exemptions states …

“… the DMCA is not the sole nor even the primary legal protection preventing malicious tampering with such devices, or otherwise defining the contours of appropriate research. The fact that malicious tampering with certain devices or works could cause serious harm is reason to maintain legal prohibitions against such tampering, but not necessarily to try to mirror all such legal prohibitions within the DMCA’s exemptions.”

In other words copyright may be a factor with regard to device tampering—either for illegal or legal purposes—but it is quite often not the factor. To the extent DMCA may be inappropriately intertwined with other federal protections, that is a matter for Congress to consider, but that exploration seems unlikely to implicate the unconstitutionality of 1201 as a copyright protection regime. In the meantime, it is unhelpful when EFF acolytes like Cory Doctorow fire off misleading blurbs that distill the complexity of the Rulemaking process down to crazy shit like “copyright is the reason diabetics can’t get generic insulin.”

The EFF may yet demonstrate ways in which DMCA 1201 is helping to keep Big Tech too big (i.e. stifling competition), but the organization tends not to mention ways in which the statute has fostered innovation. For instance eReaders would not exist without technical protection measures that provide publishers and authors a reason to license digital versions of their books; and DRM these days is generally invisible to consumers, playing a role in the innovation called streaming. In this regard, if the EFF truly intends to take on Big Tech for anti-competitive practices, then welcome to the party; but their chronic assault on copyright law alone has only helped to foster and sustain the market dominance of some of the major companies now allegedly in their sights.

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