publishing – Techdirt (original) (raw)

ExTwitter Rightly Tells Court That Music Publishers’ Lawsuit Is Complete Nonsense And Should Be Tossed Out

from the good-lawyering-for-once dept

Back in June, we wrote about a ridiculously weak lawsuit from the big music publishers against exTwitter, claiming that the platform, mostly known for text, and which barely has any reasonable system for posting or listening to music, was a music piracy haven.

As we noted, the publishers’ lawsuit seemed misguided in multiple ways, beyond just the lack of facilities on exTwitter for music, but also because the entire lawsuit seems to ignore the nature of the DMCA or any number of previous cases that says that online platforms need to have specific, actual knowledge of infringing works, rather than generalized knowledge that “infringement is happening on my platform.”

exTwitter has now hit back in court (first reported by Torrentfreak), and is asking for the judge to toss out the lawsuit. My initial fear with this lawsuit is that exTwitter would blow it by hiring bad lawyers who don’t understand the nuances here, but at least that doesn’t seem to be the case so far. Elon appears to have turned it over to his favorite lawyer, Alex Spiro, and his colleagues at Quinn Emanuel. While I wouldn’t trust Spiro for any of this, QE actually does have some very strong lawyers on copyright who have won some big cases, so there’s some serious lawyering going on.

The preliminary statement lays out the details of what a joke this case is:

Plaintiffs fail to adequately allege direct infringement because the Complaint does not contend that X acted with the requisite “volitional” conduct. The law requires that direct infringement arise from active, knowing, non-automated conduct by a defendant—not from the passive, automated operations of a website. The Complaint contains no allegations of active, intentional conduct by X, or any X employee, related to the allegedly infringing user posts—an omission that is fatal to the claim.

The contributory infringement claim is similarly defective. The United States Supreme Court has held that where a company offers a product or service that has substantial non-infringing uses—as X’s service indisputably does—the copyright plaintiff must allege that the defendant took active steps with the intent of encouraging infringement. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 937 (2005) (“Grokster”). In this case, Plaintiffs do not allege that X encouraged, induced, or took affirmative steps with the intent to foster the infringement of Plaintiffs’ works. To the contrary, X’s anti-infringement policies and practices, including its DMCA policy, belie any reasonable assumption that X has induced its users to infringe any copyrights. Even reading the Complaint in the light most favorable to Plaintiffs, no liability can be established on the facts as pleaded. As this Court appropriately recognized in a case with similar facts, this pleading defect requires dismissal of the contributory liability claim. See Eight Mile Style, LLC v. Spotify USA Inc., 535 F. Supp. 3d 738, 746 (M.D. Tenn. 2021).

Finally, Plaintiffs’ claim for vicarious liability fails as a matter of law because Plaintiffs do not allege that the ability to post infringing content to the X platform (in violation of the Terms of Service) is a draw to users sufficient to confer an “obvious and direct” financial benefit to X, or that X had the practical ability to supervise the alleged infringement. As such, the vicarious liability claim is also insufficiently pleaded and should be dismissed.

There’s a ridiculous amount of caselaw on exTwitter’s side on this one.

I still worry about how Elon, as a wild card, will tweet something ridiculous like “hey everyone, let’s start posting infringing songs here for the lulz” or whatever. But, barring that, exTwitter has a strong case here, and the publishers look even greedier than they normally do in filing this case.

Twitter is not a music platform, and even if Musk is gradually hoping to turn the platform into one, that should be dealt with when those plans become clear, rather than the flimsy theories filed in this lawsuit, which would get laughed out of any law school copyright law discussion.

Filed Under: copyright, elon musk, music, publishing
Companies: concord music group, nmpa, twitter, x

from the that-damn-emoji-movie-ruined-everything dept

Ah, copyright. Eric Goldman alerts us to to a new bit of copyright nonsense. Jieun Kiaer, an Oxford professor of Korean linguistics, recently published an academic book called Emoji Speak: Communications and Behaviours on Social Media. As you can tell from the name, it’s a book about emoji, and about how people communicate with them:

Exploring why and how emojis are born, and the different ways in which people use them, this book highlights the diversity of emoji speak. Presenting the results of empirical investigations with participants of British, Belgian, Chinese, French, Japanese, Jordanian, Korean, Singaporean, and Spanish backgrounds, it raises important questions around the complexity of emoji use.

Though emojis have become ubiquitous, their interpretation can be more challenging. What is humorous in one region, for example, might be considered inappropriate or insulting in another. Whilst emoji use can speed up our communication, we might also question whether they convey our emotions sufficiently. Moreover, far from belonging to the youth, people of all ages now use emoji speak, prompting Kiaer to consider the future of our communication in an increasingly digital world.

Sounds interesting enough, but as Goldman highlights with an image from the book, Kiaer was apparently unable to actually show examples of many of the emoji she was discussing due to copyright fears. While companies like Twitter and Google have offered up their own emoji sets under open licenses, not all of them have, and some of the specifics about the variations in how different companies represent different emoji apparently were key to the book.

So, for those, Kiaer actually hired an artist, Loli Kim, to draw similar emoji!

Note on Images of Emojis

The page reads as follows (with paragraph breaks added for readability):

Notes on Images of Emojis

Social media spaces are almost entirely copyright free. They do not follow the same rules as the offline world. For example, on Twitter you can retweet any tweet and add your own opinion. On Instagram, you can share any post and add stickers or text. On TikTok, you can even ‘duet’ a video to add your own video next to a pre-existing one. As much as each platform has its own rules and regulations, people are able to use and change existing material as they wish. Thinking about copyright brings to light barriers that exist between the online and offline worlds. You can use any emoji in your texts, tweets, posts and videos, but if you want to use them in the offline world, you may encounter a plethora of copyright issues.

In writing this book, I have learnt that online and offline exist upon two very different foundations. I originally planned to have plenty of images of emojis, stickers, and other multi-modal resources featured throughout this book, but I have been unable to for copyright reasons. In this moment, I realized how difficult it is to move emojis from the online world into the offline world.

Even though I am writing this book about emojis and their significance in our lives, I cannot use images of them in even an academic book. Were I writing a tweet or Instagram post, however, I would likely have no problem. Throughout this book, I stress that emoji speak in online spaces is a grassroots movement in which there are no linguistic authorities and corporations have little power to influence which emojis we use. Comparatively, in offline spaces, big corporations take ownership of our emoji speak, much like linguistic authorities dictate how we should write and speak properly.

This sounds like something out of a science fiction story, but it is an important fact of which to be aware. While the boundaries between our online and offline words may be blurring, barriers do still exist between them. For this reason, I have had to use an artist’s interpretation of the images that I originally had in mind for this book. Links to the original images have been provided as endnotes, in case readers would like to see them.

Just… incredible. Now, my first reaction to this is that using the emoji and stickers and whatnot in the book seems like a very clear fair use situation. But… that requires a publisher willing to take up the fight (and an insurance company behind the publisher willing to finance that fight). And, that often doesn’t happen. Publishers are notoriously averse to supporting fair use, because they don’t want to get sued.

But, really, this just ends up highlighting (once again) the absolute ridiculousness of copyright in the modern world. No one in their right mind would think that a book about emoji is somehow harming the market for whatever emoji or stickers the professor wished to include. Yet, due to the nature of copyright, here we are. With an academic book about emoji that can’t even include the emoji being spoken about.

Filed Under: copyright, emoji, emoji speak, fair use, jieun kiaer, publishing

New York Dept. Of Corrections Bets On Prior Restraint, Adds Shackles To Certain Forms Of Personal Expression

from the shut-up,-they-policied dept

There have been plenty of laws passed to keep prisoners from profiting from depictions of their crimes, encompassing not only their own recountings, but those put together by others. These so-called “Son of Sam” laws got their name from serial killer David Berkowitz, who authorities speculated was going to sell off the rights to his life story for an immense amount of money. This deal never materialized, but the New York State Legislature passed the first “Son of Sam” legislation anyway.

Other states have passed similar legislation. While it might seem wise to prevent prisoners from profiting from the misery they’ve inflicted on others, the laws are often read to prevent prisoners from engaging in any sort of personal expression for profit, whether or not it’s tied to the crimes for which they were convicted.

Consequently, these laws have been frequently challenged in court. The New York law was ruled unconstitutional by none other than the US Supreme Court, which found that the law — while possibly well-intended — would have prevented the publication of everything from Malcolm X’s autobiography to The Confessions of St. Augustine, a 4th century recounting of a canonized saint’s life of (extremely mild) crime prior to his conversion.

Having been proven wrong once, the New York State Department of Corrections is now striving to be proven wrong twice. As NY Focus reports, the DoC has issued a new internal policy that forbids prisoners from engaging in journalism or any other artistic expression that might possibly result in them getting paid for their work.

The Department of Corrections and Community Supervision’s directive, which went into effect on May 11, establishes a stringent, months-long approval process for people in its custody to publish creative work, including books, art, music, poetry, film scripts, and other writing. It gives prison superintendents the power to block work from publication if it violates any of a number of broad rules — including bans on mentioning the artist or author’s crime and portraying doccs in a way that could “jeopardize safety or security.” And it stipulates that incarcerated people can’t be paid for their creative work without permission.

It’s pretty much prior restraint, but couched in cautious language over the course of four pages. It doesn’t strictly forbid protected expression. It simply says the prison will decide whether or not the expression can be published. And it strictly forbids profiting from any creative work without the DoC’s permission — permission it’s unlikely to extend no matter how worthy of payment or devoid of objectionable content the creative work is.

While it seems like the sort of thing necessary to deter prisoners from selling shocking stories to the highest bidder, the reality is much more banal. And much more evil in its banality. For instance, it would have prevented prisoner John J. Lennon from providing an insider’s view on the societal issues facing released prisoners, like a lack of housing and steady employment — views most recently published by none other than New York’s Paper of Record.

And it will affect others, like one of Lennon’s colleagues, Freddy Medina:

Like Lennon, Freddy Medina nurtured his passion for writing while in prison. Before his release last September, he wrote an essay and began reporting an article for New York Focus.

Second only to getting his bachelor’s and master’s degrees, “being published while I was incarcerated was one of the single most important things to happen to me,” he said. “I’d been wanting to be a writer since I was a child.”

It’s unclear whether his work — on hunger in prisons and guns in schools — would’ve made it past the new directive. New York Focus definitely wouldn’t have been allowed to pay him for it before his release.

That’s the banality of the new policy [PDF]. Here’s the evil lurking behind the banality:

Per the directive, they can block pieces that “promote sexual activity,” depict symbols of “unauthorized group activity,” “advocate rebellion against government authority,” or appear to be “written in code.”

Officials can also forbid publication of work that portrays “law enforcement officers or doccs in a manner which could jeopardize safety or security.” When New York Focus asked doccs to clarify this point, the department simply repeated it.

It’s not enough to control every aspect of a prisoner’s life. The DoC feels it must also control the narrative, even when it’s a direct contributor to these narratives. The blanket ban on discussing anything that might “jeopardize safety or security” means prison officials are free to reject anything that discusses any aspect of prison life. “Safety/security” is a blanket justification for acts of law enforcement violence. This is the flip side: a justification for any censorship of anything that realistically depicts prison life.

These aren’t the sort of restrictions that can survive a constitutional challenge:

  1. Incarcerated creative arts projects shall not:
    a. Include depictions or descriptions of the incarcerated individual’s crime or
    crime victims.
    b. Depict hand signs, insignias, graffiti, or any other identifiers depicting or
    pertaining to a gang or unauthorized group activity.
    c. Promote sexual activity.
    d. Contain information that appears to be written in code.
    e. Portray individuals of a religion or protected class in a negative light.
    f. Advocate rebellion against government authority.
    g. Portray law enforcement officers or DOCCS in a manner which could
    jeopardize safety or security.

That covers a lot of what prison journalism or other expression might involve. You can’t discuss prison life without discussing crime, crime victims, gang activity, or antipathy towards corrections officers. The policy allows the DoC to make all of these determinations without seeking the input of any impartial party. The final call will be made by the entity with a vested interest in only allowing the most positive portrayals of prison life to escape its literal walls. It sets itself up as the final arbiter of speech, which is definitely going to cause it problems in court should any prisoners sue over these highly arbitrary restrictions.

Only prisoners can inform the rest of the world about prison life and life beyond prison. Telling them they simply can’t talk about it while still behind bars isn’t the way the First Amendment works, especially when compensation (whether or not legally barred by “Son of Sam” laws) appears to be only a secondary concern. And if that’s the case, this is nothing more than the DoC finding yet another way to silence incarcerated critics from finding a sizable un-incarcerated audience for their expression.

Filed Under: 1st amendment, ny state department of corrections, prior restraint, prisoners, publishing

from the just-another-asset-class? dept

Back in October, I noted the huge amounts of money pouring into music copyrights, largely driven by the global rise of online streaming. Since then, that trend has continued, most notably with Bruce Springsteen’s sale of his recordings and songwriting catalogue to Sony, for a rumored $550 million. As I pointed out in the post, one of the problems with this “financialization” of the sector is that music copyrights become completely divorced from the original creativity that lies behind them. They become just another asset, like gold, petroleum or property. On the Open Future blog, Paul Keller has pointed out a plausible – and terrifying – consequence of this shift.

As Keller notes, the more the owners of copyrights become detached from the creative production process, the less they will care about the nominal balances within the system. In particular, the central quid pro quo of copyright – that a government monopoly is granted to creators for a limited period, after which the work enters the public domain – will be perceived simply as an obstacle to greater profits. The financialization of the music world means that an artist’s ability to use the public domain as a foundation for future creativity, or to take advantage of copyright exceptions, will be of no interest to the corporations and private equity firms that are only concerned about the value of their own assets. For Keller, the end-game is clear:

From the perspective of financial investors, copyright is not much more than a bundle of rights created out of thin air that structure financial flows and it follows that there is absolutely no reason why they should not push for governments to make these rights last longer. Once the slate of recording artists that entered into these deals have passed away and will not be able to speak up anymore – or complain that they have been shafted – it will only be a question of time until financial investors start pushing for longer term durations or – more likely – perpetual copyright. Compared to this new class of cultural predators, the good old Walt Disney company will quickly start looking like an innocent schoolboy.

It has been hard enough in the past to make copyright a little fairer for members of the public. If Keller is right – and I fear he is – it will become close to impossible to continue that process in the future unless people start defending vociferously what few rights that they currently have in the world of copyright.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Republished from the Walled Culture blog.

Filed Under: assets, bruce springsteen, copyright, financialization, perpetual copyright, publishing

Top Publishers Aim To Own The Entire Academic Research Publishing Stack; Here's How To Stop That Happening

from the protocols-not-platforms dept

Techdirt’s coverage of open access — the idea that the fruits of publicly-funded scholarship should be freely available to all — shows that the results so far have been mixed. On the one hand, many journals have moved to an open access model. On the other, the overall subscription costs for academic institutions have not gone down, and neither have the excessive profit margins of academic publishers. Despite that success in fending off this attempt to re-invent the way academic work is disseminated, publishers want more. In particular, they want more money and more power. In an important new paper, a group of researchers warn that companies now aim to own the entire academic publishing stack:

Over the last decade, the four leading publishing houses have all acquired or developed a range of services aiming to develop vertical integration over the entire scientific process from literature search to data acquisition, analysis, writing, publishing and outreach. User profiles inform the corporations in real time on who is currently working on which problems and where. This information allows them to offer bespoke packaged workflow solutions to institutions. For any institution buying such a workflow package, the risk of vendor lock-in is very real: without any standards, it becomes technically and financially nearly impossible to substitute a chosen service provider with another one. In the best case, this non-substitutability will lead to a practically irreversible fragmentation of research objects and processes as long as a plurality of service providers would be maintained. In the worst case, it will lead to complete dependence of a single, dominant commercial provider.

Commenting on this paper, a post on the MeaseyLab blog calls this “academic capture“:

For those of us who have lived through state capture, we felt powerless and could only watch as institutions were plundered. Right now, we are willing participants in the capture of our own academic freedom.

Academic capture: when the institutions’ policies are significantly influenced by publishing companies for their profit.

Fortunately, there is a way to counter this growing threat, as the authors of the paper explain: adopt open standards.

To prevent commercial monopolization, to ensure cybersecurity, user/patient privacy, and future development, these standards need to be open, under the governance of the scholarly community. Open standards enable switching from one provider to another, allowing public institutions to develop tender or bidding processes, in which service providers can compete with each other with their services for the scientific workflow.

Techdirt readers will recognize this as exactly the idea that lies at the heart of Mike’s influential essay “Protocols, Not Platforms: A Technological Approach to Free Speech“. Activist and writer Cory Doctorow has also been pushing for the same thing — what he calls “adversarial interoperability“. It seems like an idea whose time has come, not just for academic publishing, but every aspect of today’s digital world.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: academic capture, copyright, open access, protocols, publishing, research

The End Of Ownership: How Big Companies Are Trying To Turn Everyone Into Renters

from the ok-landlord dept

We’ve talked a lot on Techdirt about the end of ownership, and how companies have increasingly been reaching deep into products that you thought you bought to modify them… or even destroy them. Much of this originated in the copyright space, in which modern copyright law (somewhat ridiculously) gave the power to copyright holders to break products that people had “bought.” Of course, the legacy copyright players like to conveniently change their language on whether or not you’re buying something or simply “licensing” it temporarily based on what’s most convenient (i.e., what makes them the most money) at the time.

Over at the Nation, Maria Bustillos, recently wrote about how legacy companies — especially in the publishing world — are trying to take away the concept of book ownership and only let people rent books. A little over a year ago, picking up an idea first highlighted by law professor Brian Frye, we highlighted how much copyright holders want to be landlords. They don’t want to sell products to you. They want to retain an excessive level of control and power over it — and to make you keep paying for stuff you thought you bought. They want those monopoly rents.

As Bustillos points out, the copyright holders are making things disappear, including “ownership.”

Maybe you?ve noticed how things keep disappearing?or stop working?when you ?buy? them online from big platforms like Netflix and Amazon, Microsoft and Apple. You can watch their movies and use their software and read their books?but only until they decide to pull the plug. You don?t actually own these things?you can only rent them. But the titanic amount of cultural information available at any given moment makes it very easy to let that detail slide. We just move on to the next thing, and the next, without realizing that we don?t?and, increasingly, can?t?own our media for keeps.

And while most of the focus on this space has been around music and movies, it’s happening to books as well:

Unfortunately, today?s mega-publishers and book distributors have glommed on to the notion of ?expiring? media, and they would like to normalize that temporary, YouTube-style notion of a ?library.? That?s why, last summer, four of the world?s largest publishers sued the Internet Archive over its National Emergency Library, a temporary program of the Internet Archive?s Open Library intended to make books available to the millions of students in quarantine during the pandemic. Even though the Internet Archive closed the National Emergency Library in response to the lawsuit, the publishers refused to stand down; what their lawsuit really seeks is the closing of the whole Open Library, and the destruction of its contents. (The suit is ongoing and is expected to resume later this year.) A close reading of the lawsuit indicates that what these publishers are looking to achieve is an end to the private ownership of books?not only for the Internet Archive but for everyone.

Bustillos is trying to help buck this trend. She’s part of a high profile, recently launched publishing cooperative called Brick House. Brick House is releasing a quarterly publication full of art and writing from Brick House members. But, unlike the big publishers, Brick House is happy to actually sell a digital copy to the Internet Archive, just as it would have sold a physical copy.

The book is called the

Brick House Apparent Quarterly (Vol. I), and it?s an archived selection of some of our favorite art and writing from the nine current Brick House publications: Awry, FAQ NYC, Hmm, No Man Is An Island, OlongoAfrica, Popula, Preachy, Sludge, and Tasteful Rude. We sold a digital copy to the Internet Archive?s Open Library, for the same price ($32) as the forthcoming paper copy.

We wanted everyone to be clear on what selling?really selling, not licensing?a digital copy means, so we talked with Harvard copyright adviser, lawyer, and librarian Kyle K. Courtney. The copy of the Brick House book we sold to the Open Library is theirs to keep forever. Even if they should need one day to transfer the book to a different medium (for example, if ebooks were to become obsolete), the Open Library will still own it. The Open Library will always be free to loan the book to their patrons through the magic of Controlled Digital Lending (CDL), whereby one (digital) copy can be loaned to one patron at a time?just like with paper books. Long-established library security systems ensure that a patron can?t just pirate and distribute our digital book. (If the Brick House Apparent Quarterly proves very popular, libraries might need to buy extra copies!) CDL is the legal means by which digital books and paper books are made equal, and every publisher should support its global adoption.

This shouldn’t be seen as radical. However, as we’ve noted, the big publishers have more or less gone to war with libraries over ebooks, jacking up the prices, limiting how often they can be lent out, and demanding “renewal” payments after a certain period of time or number of lends.

And this is incredibly important to culture and the preservation of culture. As Bustillos notes:

As writers and artists whose work has often disappeared from the Internet, we Brick House publishers have a keen appreciation of the importance of archives and libraries. Most books are out of print; most of what has been written has also been forgotten. We don?t want that to happen to our work. And we are acutely alive to the threat of corporate encroachment over the right to access information in a free society. We stand with the Internet Archive?s Brewster Kahle, who said: ?If a publisher maintains control over every reading event, who?s allowed to read it, when are they allowed to read it, if they?re allowed to read it? we are in George Orwell world.?

The big publishers and other large copyright holders always insist that they’re “protecting artists.” That’s almost never the case. They regularly destroy and suppress creativity and art with their abuse of copyright law. Culture shouldn’t have to be rented, especially when the landlords don’t care one bit about the underlying art or cultural impact.

Filed Under: books, ebooks, end of ownership, licensing, ok landlord, ownership, publishing, renting

from the unfortunately-not dept

The Association of American Publishers, like most industry lobbying groups, has a reputation for jealously guarding industry profit-making, no matter the larger implications of their doing so. In the past, the AAP has advocated for secret copyright treaties designed specifically to protect the publishing industry, getting Google to make its Google Library project far less useful, and has sued the Internet Archive’s digital library program in the middle of the COVID-19 pandemic. Again, the AAP is a lobbying group and we should expect them in some respects to behave like one, but it’s important to tease out what they’re lobbying for and against and whether its interests are shared with the interests of the general public. Spoiler alert: they absolutely are not.

So, when the AAP held its recent annual meeting and devoted a portion of this 90-minute affair to the importance of copyright, that would typically be met with something of a yawn and a hand-wave. And when it got several mediocre persons to also speak at that meeting in part to rail against the omni-present threat of “big tech”, well, most of us probably just kept yawning.

As part of their remarks, Brian Napack, AAP chair and CEO of John Wiley, and Maria Pallante, CEO of AAP, made clear that protecting copyright remains the top priority for the association.

Minnesota Senator Amy Klobuchar voiced her concerns over the power of Big Tech in accepting the AAP’s 2021 Award for Distinguished Public Service. Keynote speaker Don Lemon (CNN host and author of This Is the Fire), urged publishers to publish more authors of color, while closing keynoter Brad Stone focused his remarks on Amazon, the subject of two of his books, The Everything Store and the recently released Amazon Unbound.

If Senator Klobuchar wants to join the likes of Donald Trump in complaining vaguely about “big tech”, well, I guess I’ll just have to somehow manage to keep my eyes dry. The inclusion of divisive cable news commentators is certainly a choice to be made, I suppose, as is the inclusion of a biographer for Amazon and Jeff Bezos who isn’t always super kind to the company or its leader. That Stone’s books can be bought on Amazon is at least a partial rebuttal of all the “big tech” complaining, but I digress.

Instead, what is most notable from this annual meeting is the CEO of the AAP, Maria Pallante, proclaiming to the audience that the association would do everything possible to beat back the “assault” in progress on America’s copyright laws.

To make sure that publishing remains a good business to be in, AAP’s job, Pallante said, “is to ensure that you can compete fairly in the modern marketplace.” Regrettably, she continued, “there are actors who seek to weaken your legal protections in order to advance their business interests, whether that interest is in bloating the fair use doctrine to illogical boundaries or, more blatantly, appropriating and monetizing your works without permission.”

In Pallante’s view, the exclusive rights delineated in the Copyright Act are under assault, as is an effective enforcement framework, and she said the DMCA, which governs how infringing content on websites can be taken down, “is badly in need of updating.” She also lamented the lack of a competitive marketplace in which authors’ works can be discovered and publishers can compete “without unfair control or manipulation from dominant tech giants.”

Think about the claims in that statement. “There are actors that seek to weaken your legal protections in order to advance their business interests” is a hell of a take from the CEO of a lobbying group that literally does that exact thing to the public. More copyright laws that strip away the public’s rights, stricter enforcement with less legal protections for the accused among the public, diminishing the role of fair use: literally all of these things Pallante is advocating for are well-described as an actor seeking to weaken your legal protections to advance its business interests. Pallante is literally the villain she’s complaining about.

As for copyright being “under assault”, well, I can only assume it’s under assault in the same fashion that I’m constantly told that Christmas is under assault, by which I mean it only expands, becomes more arduous and annoying, is omni-present, and is tied strictly to commercial interests.

Pallante goes on to suggest that the AAP’s lawsuit against the Internet Archive’s library platform had better be victorious… or else basically all copyright protections go away.

In a final point about copyright, Pallante said that the lawsuit the association filed a year ago against the Internet Archive for copying 1.3 million scans of books is still in discovery, but said the IA’s activities “are well outside the boundaries of both the law and copyright commerce, and ultimately pose an existential threat to the copyright framework on which authors and publishers rely.”

If you can read that and not burst out laughing, you have a stronger constitution than I do.

Now, if Pallante’s name sounds at all familiar to you, it’s because she previously ran America’s Copyright Office. Now, I will say this much: I will happily take Pallante’s doomsday for copyright claims more seriously than I have in this post if she can tell me what happened to the $11 million that the Copyright Office, under her leadership, managed to spend on a computer system that never materialized, was supposed to cost a tenth of that spend, and was the subject of several lies in the Copyright Office’s reports to Congress.

Otherwise, I’ll just note that copyright law in this country is so laughably bloated that it deserves an assault, but isn’t actually on the receiving end of one.

Filed Under: big tech, copyright, fair use, maria pallante, publishing, user rights
Companies: aap, association of american publishers

Techdirt Podcast Episode 256: Little Brother vs. Big Audiobook, With Cory Doctorow

from the doing-something-different dept

The third book in Cory Doctorow’s Little Brother series is coming soon — but as usual, Cory is doing something different as part of the release. Fans and Techdirt readers know he’s an outspoken opponent of DRM who makes sure all his work is available DRM-free, but that isn’t so easy when it comes to audiobooks, where Audible’s market dominance forces DRM onto everything. So while publishers eagerly picked up Attack Surface for printing, he retained the audio rights and is running his first-ever Kickstarter to release a nice non-DRM version. This week, Cory joins Mike on the podcast to discuss why he’s doing it, what he’s giving up, and the industry changes he hopes to inspire.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Filed Under: attack surface, audiobooks, books, cory doctorow, drm, little brother, publishing
Companies: amazon, audible, kickstarter

Section 230 and Criminal Law; DOJ 230 Workshop Review, Part II

from the don't-break-the-internet dept

In Part I of this series on the Department of Justice?s February 19 workshop, Section 230 ? Nurturing Innovation or Fostering Unaccountability? (archived video and agenda), we covered why Section 230 is important, how it works, and how panelists proposed to amend it.

Here, Part II covers how Section 230 intersects with criminal law, especially around child sexual abuse material (CSAM). Part III will ask what?s really driving DOJ, and explore how to get tough on CSAM without amending Section 230 or banning encryption.

Section 230 Has Never Stopped Enforcement of Most Criminal Laws

The second panel in particular focused on harms that either already are covered by federal criminal law (like CSAM) or that arguably should be (like revenge porn). So it?s worth reiterating two things up front:

Plaintiff?s lawyer Carrie Goldberg repeatedly mentioned Herrick v. Grindr. Her client Matthew Herrick sued Grindr for failing to stop his ex-boyfriend from repeatedly creating fake Grindr profiles of Herrick, each claiming he had a rape fantasy, and using these profiles to send over 1200 men to attempt to rape him. Both state criminal law and federal harassment law already cover such conduct. In fact, contrary to Goldberg?s claims that law enforcement did nothing to help her client, Herrick?s ex was arrested in 2017 and charged with stalking, criminal impersonation, making a false police report, and disobeying a court order.

On the same panel, Yiota Souras, Senior Vice President and General Counsel, National Center for Missing and Exploited Children, acknowledged that Section 230 didn?t stop federal prosecutors from charging executives of Backpage.com. Indeed, the former CEO plead guilty literally one day after President Trump signed FOSTA-SESTA — the first legislation to amend Section 230 since the law was enacted in 1996. Souras claimed that the only reason other sites haven’t rushed to fill the gap left by Backpage (in hosting ads for child sex trafficking) was the the deterrence effect of the new law.

Correction Notice: This post originally misattributed the above to Prof. Mary Anne Franks, rather than Yiota Souras.

But since FOSTA-SESTA was enacted nearly two years ago, not a single prosecution has been brought under the new law. By contrast, the DOJ managed to actually shut down Backpage.com and its former CEO, Carl Ferrer. Ferrer is now awaiting sentencing and could face up to five years in prison plus a $250,000 fine. (You can read his plea bargain if you?re interested.) Meanwhile, the two other arrested Backpage executives are continuing to fight their legal case, in which there is increasing evidence that the Justice Department is trying to railroad them into a guilty plea by misrepresenting their efforts to help stop trafficking as evidence they were helping to promote it. It?s a messy case, but with one criminal plea under pre-existing law and zero prosecutions for the new law, it?s hard to argue that the new law accounts for all of the deterrence value Franks ascribes to it.

The Role of States and State Criminal Law

Nebraska Attorney General Doug Peterson said state AGs wanted only one tiny tweak to Section 230: adding state criminal law to the list of exceptions to Section 230?s protections. (The National Association of Attorneys General has been pushing this idea for nearly a decade). It may sound moderate: after all, since 230 doesn?t bar enforcement of federal criminal law, why stop the application of state criminal law? But, as Prof. Goldman noted, there?s a world of difference between the two.

The AGs? proposal would create four distinct problems:

  1. Section 230 has ensured that we have a consistent national approach to using criminal law to police how websites and Internet services operate. But if website operators could be charged under any state or local law, you?d have a crazy-quilt of inconsistent state laws. Every state and locality in America could regulate the entire Internet.
  2. Most scholars agree that federal criminal law has become far too broad, but compared to any one state?s body of criminal law, it?s narrow and tailored. State criminal law includes an almost endless array of offenses, from panhandling to disturbing the peace, etc. Few people would argue that such laws should be applied on the Internet — yet, if Section 230 were expanded to allow prosecution of all state laws, creative prosecutors could charge just about any website with just about anything.
  3. In particular, half the states in the country still criminalize defamation, so opening the door to the enforcement of state criminal law means making websites liable for defamation committed by users — the thing Section 230 was most specifically intended to prevent. Yes, criminal cases involve a higher burden of proof but also stiffer penalties. And if websites face criminal penalties whenever users can complain about other users? speech, the chilling effects would be enormous. Any potentially sensitive or objectionable speech would be censored before anyone even complains. Politicians would be in a particularly privileged position, able to silence their critics simply by threatening to have criminal charges filed. Think Trump on steroids — for every politician in America (and anyone else who could get prosecutors to file a criminal complaint, or at least threaten to do so).
  4. These laws weren?t written for the Internet and don?t reflect the difficult balancing that would have to be done to answer the critical questions: exactly when would a website be responsible for each of the potentially billions of pieces of content it hosts? What kind of knowledge is required? The example of Italian prosecutors charging a Google executive with criminal cyberbullying simply because Google was too slow to take down a video of students taunting an autistic classmate illustrates just how high the stakes could be (never mind that the charges were ultimately overturned by the Italian Supreme Court).

There?s no need to open this can of worms. If the problem is that we don?t have a law for something like revenge porn, we should have that debate — but in Congress, not in every state legislature or town hall. A new federal criminal law could be enforced without amending Section 230.

But if the problem is that federal law enforcement lacks the resources to enforce existing criminal law — again, this is absolutely true for CSAM — the obvious answer would be to enlist state prosecutors in the fight. In fact, the U.S. Attorney General can already designate state prosecutors as ?special attorneys? under 18 U.S.C. § 543. Section 230 wouldn?t stop them from prosecuting websites because Section 230(e)(1) preserves the enforceability of federal criminal law regardless of who?s doing the enforcing. The fact that you?ve almost certainly never heard of this provision ought to make clear that this has never really been about getting state prosecutors more engaged — and make you question the state AG?s motives. (The same goes for formalizing this process by amending specific federal criminal laws to allow state prosecutors to enforce them.)

We proposed using Section 543 in the SESTA-FOSTA debate back in 2017 but the idea was dismissed out of hand. As a practical matter, it would require state prosecutors to operate in federal court — and thus, in many cases, to learn new practice rules. But that can?t possibly be what?s stopping them from getting involved in CSAM cases.

In Part III, we?ll ask what?s really driving DOJ here. Hint: it?s not really about ?protecting the children.?

Filed Under: bill barr, cda, content moderation, csam, defamation, internet, law, publishing, section 230

Why Section 230 Matters And How Not To Break The Internet; DOJ 230 Workshop Review, Part I

from the don't-break-the-internet dept

Festivus came early this year — or perhaps two months late. The Department of Justice held a workshop Wednesday: Section 230 – Nurturing Innovation or Fostering Unaccountability? (archived video and agenda). This was perhaps the most official “Airing of Grievances” we’ve had yet about Section 230. It signals that the Trump administration has declared war on the law that made the Internet possible.

In a blistering speech, Trump’s embattled Attorney General, Bill Barr, blamed the 1996 law for a host of ills, especially the spread of child sexual abuse material (CSAM). That proved a major topic of discussion among panelists. Writing in Techdirt three weeks ago, TechFreedom’s Berin Szóka analyzed draft legislation that would use Section 230 to force tech companies to build in backdoors for the U.S. government in the name of stopping CSAM — and predicted that Barr would use this workshop to lay the groundwork for that bill. While Barr never said the word “encryption,” he clearly drew the connection — just as Berin predicted in a shorter piece just before Barr’s speech. Berin’s long Twitter thread summarized the CSAM-230 connection the night beforehand and continued throughout the workshop.

This piece ran quite long, so we’ve broken it into three parts:

  1. This post, on why Section 230 is important, how it works, and how panelists proposed to amend it.
  2. Part two, discussing how Section 230 has never applied to federal criminal law, but a host of questions remain about new federal laws, state criminal laws and more.
  3. Part three, which will be posted next week, discussing what?s really driving the DOJ. Are they just trying to ban encryption? And can we get tough on CSAM without amending Section 230 or banning encryption?

Why Section 230 Is Vital to the Internet

The workshop’s unifying themes were “responsibility” and “accountability.” Critics claim Section 230 prevents stopping bad actors online. Actually, Section 230 places responsibility and liability on the correct party: whoever actually created the content, be it defamatory, harassing, generally awful, etc. Section 230 has never prevented legal action against individual users — or against tech companies for content they themselves create (or for violations of federal criminal law, as we discuss in Part II). But Section 230 does ensure that websites won’t face a flood of lawsuits for every piece of content they publish. One federal court decision (ultimately finding the website responsible for helping to create user content and thus not protected by Section 230) put this point best:

Websites are complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged — or at least tacitly assented to — the illegality of third parties.

Several workshop panelists talked about “duck-bites” but none really explained the point clearly: One duck-bite can’t kill you, but ten thousand might. Likewise, a single lawsuit may be no big deal, at least for large companies, but the scale of content on today’s social media is so vast that, without Section 230, a large website might face far more than ten thousand suits. Conversely, litigation is so expensive that even one lawsuit could well force a small site to give up on hosting user content altogether.

A single lawsuit can mean death by ten thousand duck-bites: an extended process of appearances, motions, discovery, and, ultimately, either trial or settlement that can be ruinously expensive. The most cumbersome, expensive, and invasive part may be “discovery”: if the plaintiff’s case turns on a question of fact, they can force the defendant to produce that evidence. That can mean turning a business inside out — and protracted fights over what evidence you do and don’t have to produce. The process can easily be weaponized, especially by someone with a political ax to grind.

Section 230(c)(1) avoids all of that by allowing courts to dismiss lawsuits without defendants having to go through discovery or argue difficult questions of First Amendment case law or the potentially infinite array of potential causes of action. Some have argued that we don’t need Section 230(c)(1) because websites should ultimately prevail on First Amendment grounds or that the common law might have developed to allow websites to prevail in court. The burden of litigating such cases at the scale of the Internet — i.e., for each of the billions and billions of pieces of content created by users found online, or even the thousands, hundreds or perhaps even dozens of comments that a single, humble website might host — would be impossible to manage.

As Profs. Jeff Kosseff and Eric Goldman explained on the first panel, Congress understood that websites wouldn’t host user content if the law imposed on them the risk of even a few duck bites per posting. But Congress also understood that, if websites faced increased liability for attempting to moderate harmful or objectionable user content on their sites, they’d do less content moderation — and maybe none at all. That was the risk created by Stratton Oakmont, Inc. v. Prodigy Services Co. (1995): Whereas CompuServe had, in 1991, been held not responsible for user content because it did not attempt to moderate user content, Prodigy was held responsible because it did.

Section 230 solved both problems. And it was essential that, the year after Congress enacted Section 230, a federal appeals court in Zeran v. America Online, Inc. construed the law broadly. Zeran ensured that Section 230 would protect websites generally against liability for user content — essentially, it doesn’t matter whether plaintiffs call websites “publishers” or “distributors.” Pat Carome, a partner at WilmerHale and lead defense counsel in Zeran, deftly explained the road not taken: If AOL had a legal duty as a “distributor” to take down content anyone complained about, anything anyone complained about would be taken down, and users would lose opportunities to speak at all. Such a notice-and-takedown system just won’t work at the scale of the Internet.

Why Both Parts of Section 230 Are Necessary

Section 230(c)(1) says simply that “No provider or user of an interactive computer service [content host] shall be treated as the publisher or speaker of any information provided by another information content provider [content creator].” Many Section 230 critics, especially Republicans, have seized upon this wording, insisting that Facebook, in particular, really is a “publisher” and so should be held “accountable” as such. This misses the point of Section 230(c)(1), which is to abolish the publisher/distributor distinction as irrelevant.

Miami Law Professor Mary Anne Franks proposed scaling back, or repealing, 230(c)(1) but leaving 230(c)(2)(A), which shields “good faith” moderation practices. She claimed this section is all that tech companies need to continue operations as “Good Samaritans.”

But as Prof. Goldman has explained, you need both parts of Section 230 to protect Good Samaritans: (c)(1) protects decisions to publish or not to publish broadly, while (c)(2) protects only proactive decisions to remove content. Roughly speaking, (c)(1) protects against complaints that content should have been taken down or taken down faster, while (c)(2) protects against complaints that content should not have been taken down or that content was taken down selectively (or in a “biased” manner).

Moreover, (c)(2) turns on an operator’s “good faith,” which they must establish to prevail on a motion to dismiss. That question of fact opens the door to potentially ruinous discovery — many duck-bites. A lawsuit can usually be dismissed via Section 230(c)(1) for relatively trivial legal costs (say, <$10k). But relying on a common law or 230(c)(2)(A) defense — as opposed to a statutory immunity — means having to argue both issues of fact and harder questions of law, and thus could raise that cost to easily ten times or more. Having to spend, say, $200k to win even a groundless lawsuit creates an enormous “nuisance value” to such claims — which, in turn, encourages litigation for the purpose of shaking down companies to settle out of court.

Class action litigation increases legal exposure for websites significantly: Though fewer in number, class actions are much harder to defeat because plaintiff’s lawyers are generally sharp and intimately familiar with how to wield maximum pressure to settle through the legal system. This is a largely American phenomenon and helps to explain why Section 230 is so uniquely necessary in the United States.

Imagining Alternatives

The final panel discussed “alternatives” to Section 230. FTC veteran Neil Chilson (now at the Charles Koch Institute) hammered a point that can’t be made often enough: it’s not enough to complain about Section 230; instead, we have to evaluate specific proposals to amend section 230 and ask whether they would make users better off. Indeed! That requires considering the benefits of Section 230(c)(1) as a true immunity that allows websites to avoid the duck-bites of the litigation (or state/local criminal prosecution) process. Here are a few proposed alternatives, focused on expanding civil liability. Part II (to be posted later today) will discuss expanding state and local criminal liability.

Imposing Size Caps on 230’s Protections

Critics of Section 230 often try to side-step startup concerns by suggesting that any 230 amendments preserve the original immunity for smaller companies. For example, Sen. Hawley’s Ending Support For Internet Censorship Act would make 230 protections contingent upon FTC certification of the company’s political neutrality if the company had 30 million active monthly U.S. users, more than 300 million active monthly users worldwide, or more than $500 million in global annual revenue.

Julie Samuels, Executive Director of Tech:NYC, warned that such size caps would “create a moat around Big Tech,” discouraging the startups she represents from growing. Instead, a size cap would only further incentivize startups to become acquired by Big Tech before they lose immunity. Prof. Goldman noted two reasons why it’s tricky to distinguish between large and small players on the Internet: (1) several smaller companies are among the top 15 U.S. services, e.g., Craigslist, Wikipedia, and Reddit, with small staffs but large footprints; and (2) some enormous companies rarely deal with user generated content, e.g., Cloudflare, IBM, but these companies would still be faced with all of the obligations that apply to companies that had a bigger user generated footprint. You don’t have to feel sorry for IBM to see the problem for users: laws like Hawley could drive such companies to get out of the business of hosting user-generated content altogether, deciding that it’s too marginal to be worth the burden.

Holding Internet Services Liable for Violating their Terms of Service

Goldberg and other panelists proposed amending Section 230 to hold Internet services liable for violating their terms of service agreements. Usually, when breach of contract or promissory estoppel claims are brought against services, they involve post or account removals. Courts almost always reject such claims on 230(c)(1) grounds as indirect attempts to hold the service liable as a publisher for those decisions. After all, Congress clearly intended to encourage websites to engage in content moderation, and removing posts or accounts is critical to how social media keep their sites usable.

What Goldberg really wants is liability for failing to remove the type of content that sites explicitly disallow in their terms (e.g., harassment). But such liability would simply cause Internet services to make their terms of service less specific — and some might even stop banning harassment altogether. Making sites less willing to remove (or ban) harmful content is precisely the “moderator’s dilemma” that Section 230 was designed to avoid.

Conversely, some complain that websites’ terms of service are too vague — especially Republicans, who complain that, without more specific definitions of objectionable content, websites will wield their discretion in politically biased ways. But it’s impossible for a service to foresee all of the types of awful content its users might create, so if websites have to be more specific in their terms of service, they’d have to constantly update their terms of service, and if they could be sued for failing to remove every piece of content they say they prohibit… that’s a lot of angry ducks. The tension between these two complaints should be clear. Section 230, as written, avoids this problem by simply protecting websites operators from having to litigate these questions.

Finally, in general, contract law requires a plaintiff to prove both breach and damages/harm. But with online content, damages are murky. How is one harmed by a violation of a TOS? It’s unclear exactly what Goldberg wants. If she’s simply saying Section 230 should be interpreted, or amended, not to block contract actions based on supposed TOS violations, most of those are going to fail in court anyway for lack of damages. But if they allow a plaintiff to get a foot in the door, to survive an initial motion to dismiss based on some vague theory of alleged harm, even having to defend against lawsuits that will ultimately fail creates a real danger of death-by-duck-bites.

Compounding the problem — especially if Goldberg is really talking about writing a new statute — is the possibility that plaintiffs’ lawyers could tack on other, even flimsier causes of action. These should be dismissed under Section 230, but, again, more duck-bites. That’s precisely the issue raised by Patel v. Facebook, where the Ninth Circuit allowed a lawsuit under Illinois’ biometric privacy law to proceed based on a purely technical violation of the law (failure to deliver the exact form of required notice for the company’s facial recognition tool). The Ninth Circuit concluded that such a violation, even if it amounted to “intangible damages,” was sufficient to confer standing on plaintiffs to sue as a class without requiring individual damage showings by each member of the class. We recently asked the Supreme Court to overrule the Ninth Circuit but they declined to take the case, leaving open the possibility that plaintiffs can get into federal court without alleging any clear damages. The result in Patel, as one might imagine, was a quick settlement by Facebook in the amount of $500 million shortly after the petition for certiorari was denied, given that the total statutory damages that would have been available to the class would have amounted to many billions. Even the biggest companies can be duck-bitten into massive settlements.

Limiting Immunity to Traditional Publication Torts

Several panelists claimed Section 230(c)(1) was intended to only cover traditional publication torts (defamation, libel and slander) and that over time, courts have wrongly broadened the immunity’s coverage. But there’s just no evidence for this revisionist account. Prof. Kosseff found no evidence for this interpretation after exhaustive research on Section 230’s legislative history for his definitive book. Otherwise, as Carome noted, Congress wouldn’t have needed to contemplate the other non-defamation related exceptions in the statute, like intellectual property, and federal criminal law.

Anti-Conservative Bias

Republicans have increasingly fixated on one overarching complaint: that Section 230 allows social media and other Internet services to discriminate against them, and that the law should require political neutrality. (Given the ambiguity of that term and the difficulty of assessing patterns at the scale the content available on today’s Internet, in practice, this requirement would actually mean giving the administration the power to force websites to favor them.)

The topic wasn’t discussed much during the workshop, but, according to multiple reports from participants, it dominated the ensuing roundtable. That’s not surprising, given that the roundtable featured only guests invited by the Attorney General. The invite list isn’t public and the discussion was held under Chatham House rules, but it’s a safe bet that it was a mix of serious (but generally apolitical) Section 230 experts and the Star Wars cantina freak show of right-wing astroturf activists who have made a cottage industry out of extending the Trumpist persecution complex to the digital realm.

TechFreedom has written extensively on the unconstitutionality of inserting the government into the exercise of editorial discretion by website operators. Just for example, read our statement on Sen. Hawley’s proposed legislation on regulating the Internet and Berin’s 2018 Congressional testimony on the idea (and Section 230, at that shit-show of a House Judiciary hearing that featured Diamond and Silk). Also read our 2018 letter to Jeff Sessions, Barr’s predecessor, on the unconstitutionality of attempting to coerce websites in how they exercise their editorial discretion.

Conclusion

Section 230 works by ensuring that duck-bites can’t kill websites (though federal criminal prosecution can, as Backpage.com discovered the hard way — see Part II). This avoids both the moderator’s dilemma (being more liable if you try to clean up harmful content) and that websites might simply decide to stop hosting user content altogether. Without Section 230(c)(1)’s protection, the costs of compliance, implementation, and litigation could strangle smaller companies even before they emerge. Far from undermining “Big Tech,” rolling back Section 230 could entrench today’s giants.

Several panelists poo-pooed the “duck-bites” problem, insisting that each of those bites involve real victims on the other side. That’s fair, to a point. But again, Section 230 doesn’t prevent anyone from holding responsible the person who actually created the content. Prof. Kate Klonick (St. John’s Law) reminded the workshop audience of “Balk’s law”: “THE INTERNET IS PEOPLE. The problem is people. Everything can be reduced to this one statement. People are awful. Especially you, especially me. Given how terrible we all are it’s a wonder the Internet isn’t so much worse.” Indeed, as Prof. Goldman noted, however new technologies might aggravate specific problems, better technologies are essential to facilitating better interaction. We can’t hold back the tide of change; the best we can do is to try to steer the Digital Revolution in better directions. And without Section 230, innovation in content moderation technologies would be impossible.

For further reading, we recommend the seven principles we worked with a group of leading Section 230 experts to draft last summer. Several panelists referenced them at the workshop, but they didn’t get the attention they deserved. Signed by 27 other civil society organizations across the political spectrum and 53 academics, we think they represent the best starting point for how to think about Section 230 yet offered.

Next up, in Part II, how Section 230 intersects with the criminal law. And, in Part III… what’s really driving the DOJ, banning encryption, and how to get tough on CSAM.

Filed Under: bill barr, cda, content moderation, csam, internet, law, publishing, section 230