California case from early 2016 on “right of publicity” could endanger practical use of Section 230 with user generated content; so can Backpage

There is a dangerous controversy brewing in a case, Jason Cross aka Mikel Knight v. Facebook, complaint. (Jason Cross is the stage name for Mikel Knight.)

Cross filed what seems to be a SLAPP suit against Facebook, after a variety users made criticisms of the rap singer’s operations on Facebook.  A trial court in California state court dismissed most of the claims (rather like “tortious interference” in Michael Mann’s 1999 film  “The Insider” about the tobacco industry) in May 2016 under Section 230 and California SLAPP, but allowed a claim that Facebook may have violated Cross’s “right of publicity” to stand (May 2016 ruling )  outside of Section 230 intermediary safeguards.  The actual trial has not yet taken place, and Facebook has appealed the case to a California court of appeals.

The application of right of publicity in this context seems bizarre.  The complaint is not against the user, but against Facebook itself for placing ads, which might be chosen in a manner related to the user’s content, on the page (or mobile display) next to the postings.  The theory is that the advertiser somehow benefits from the fame of the artist.

A much more common use of the right of publicity tort has to do with using the likeness of a famous person directly for commercial purposes, as in your own ad.  There would seem to some theoretical scenarios where some user content (as on a blog or hosted site) from an “amateur” draws more attention because the likeness of the public figure is on the page.  This would be more problematic if the blogger somehow implied that the public figure had endorsed the use of the public figure in the user’s content.  An amateur user, who had not “competed” or “paid his dues” in the usual sense, could leverage his own chance for become better known for his own work by first drawing on the famous person as someone to be compared to.  Possibly, providing multiple reviews of the work of the famous person could get viewed this way.  On the other hand, generally amateurs have a “right” to review all the works of any particular celebrity or better known person separately.

On it’s face, however, this very posting, because it shows the real person in the explanatory YouTube video below next to an ad, could be viewed as a “right of publicity” violation of that person, it taken very literally.  Theoretically, I sift off some undeserved ad revenue from that person’s being more deserving of fame than me.  I think even Milo (Breitbart) would think this is a ridiculous argument.

The biggest concern in the legal community is that the lower court’s preliminary ruling seems to gut the use of Section 230, allowing litigation (at least in California) whenever the substantial mention of a real-life celebrity (or conceivably any living person or even estate) in physical proximity to ads (for example, as served by Google Adsense) could prove tortious, even if the ads were not directly related to the user content.  There are multiple discussions of this case,  one by Paul Alan Levy from June 2016 here and a more detailed one today by Daniel Nazer at Electronic Frontier Foundation, “EFF to Court: Don’t Let the Right of Publicity Eat the Internet” with the amicus brief here.

It will take a long time for this case to work its way up.  Note that Facebook users are not named as defendants.  EFF makes arguments about whether “right of publicity” is really about intellectual property or about (ironically) “privacy” (or perhaps unwanted attention), or even false advertising.

Donald Trump seems hostile to amateur content, even though he uses Twitter himself.  He acts like the thinks that the winners have to keep the losers or “the Proles” in line.

Update: January 12, 2017

Electronic Frontier Foundation has a sobering article about Backpage today. One of the points is that Section 230 protects service providers as long as they don’t create or modify the illegal content (which Backpage may be doing, get back to that in a moment). Cope had already discussed the SAVE Act in January 2015 (article). Nicholas Kristof touched on sex-trafficking, Backpage (and ad modification) in an op-ed in the New York Times January 12.

Backpage closed down its adult section (reportedly) under pressure of Senate hearings very recently (Techdirt story with “censored” graphic). It looks like they took the 5th in Senate hearings (USA  Today story). I wrote a “Twitter storm” about this early 1/13 (and also a big Facebook post). ABC Nightline aired a scathing report early 1/13 here.  The Los Angeles Times offers an instructive comparison to how Backpage and Airbnb invoke Section 230 here.  According to news sources, Section 230 was also used to drop criminal charges against the CEO after an arrest (story).  Daily Beast has a (libertarian) perspective on why “banning Backpage” would actually endanger more women.

We have a new president who is not sympathetic (“no computer is safe”) to the spontaneity of they way many users express themselves with UGC (user-generate content), not only in social media but blogs and personal sites;  he sees these as not “local” or not “real life” or evasive of competing like adults with real responsibilities for dependent families. That’s one reason why the coincidence of two problems (publicity and trafficking) occurring at the same time in the media (on the same blog post by me, at least)  seems really ready to push Section 230 down a slippery slope, and with it the whole business model for much of today’s Internet (most of all social media). And it’s only one week until the inauguration as I write this.

However, it should be possible to question whether ads could be handled differently by the law than non-commercial user posts.  It would also seen that the reported behavior of modifying ads could nullify Section 230 protection even as current law stands.

I note on YouTube that since credit card companies have voluntarily given Backpage official shunning, users are fleeing to bitcoin to use the site.

I do agree with Ashton Kutcher (“A+K”) that “real men don’t buy girls” (or boys).  I wish Kutcher were president right now instead of Trump.

(Posted: Tuesday, January 10, 2017, at 11 PM EST)

Could “Trump” (or his “values” in Congress) stop citizen journalism?

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Three years ago, Malcolm Gladwell wrote a piece maintaining that enjoying college football (and presumably pro football too) as a fan is “morally problematic” because the sport is inherently dangerous, exposing young men to a not completely controllable concussion risk.  (Is it OK for actor Richard Harmon to tweet about the Fighting irish?)  I’ll leave the link to my coverage of it on a legacy blog.  I’ll leave this particular point about conditional morality out in view for a while, as I return to my own situation.

My own situation is that I do get criticism and questions about the way I manage my web presence and books, particularly questions about the fact that I don’t seem to be trying hard to sell them to make money, as if I had to make a living from them.  I don’t.  I covered this matter pretty well here with a blog posting July 8.   Likewise, I get questions about the point of my blogs and websites.  The normal free market would say that it would be very difficult for most bloggers to make a living from advertising revenue from their sites, but some niche bloggers (like “dooce ”, the famous mommy blog by Heather Armstrong) have done well.  Australian blogging guru Ramsay Taplan  (Blogtyrant ) has written lots of tutorials on how to make niche blogging work, but you have to be very serious about the business aspects and become aggressive. Adsense support forums on Google indicate that a number of bloggers, especially overseas, do try to make ends meet even on Blogger.

It’s important, for the moment, to retrace how I got into what I would now call “citizen journalism” (or “citizen commentary” would be more apt)   It all started with my incentive to write my first “Do Ask, Do Tell” book, which I first totally self-published with my own print run in 1997.  I was originally motivated by the debate over gays in the military.  My own life narrative, even up to that point, had displayed an unusual irony (much of that having to do with the Vietnam era military draft)    But my arguments moved into many “civilian” areas, including workplace discrimination, “family values”, public health, and law.  I proposed some constitutional amendments, which I thought fit the temper of the mid 1990s.  Some of what I proposed (I was very cautious on the marriage issue) has become outmoded by the progress of history since then.

It had become possible to publish text essays on Hometown AOL in the early fall of 1996.  I got my own domain (called “hppub.com” then, for “High Productivity Publishing”) in the summer of 1997 at the same time as the book publication.  Originally my intention was to maintain footnotes from the book as more events regarding the various issues unfolded.  By the summer of 1998, I decided to post the html text of the book online for viewing.  Copies of the book did sell fairly well the first two years, and by 1999, volume of hits on the site was quite significant (even from places like Saudi Arabia).

I would go on to accumulate a large amount of material about various issues regarding personal liberty, organized in a concentric fashion. Soon I would add movie-tv, book, and stage event (including music) reviews, with an emphasis on how major issues were addressed in books (including fiction) movies (both conventionally acted and documentary).  The tone of my material, in the personal liberty area, took a somewhat alarming turn after 9/11 in 2001, but that resulted in more attention to my coverage of some issues (for example, after 9/11 there was talk about renewing military conscription).  Eventually I would migrate to placing most of my new content on Blogger starting in 2006, and then gradually started a migration to hosted WordPress at the start of 2014 (as I published my third DADT book, POD).

During most of this time, I was a litigant (through Electronic Frontier Foundation) against COPA, the Child Online Protection Act of 1998, which would finally be overturned in 2007 (after a complicated history including two trips to the Supreme Court).

I think my “value” to the world  — and what gave me a sense of “identity” for the second half of my life (since the mid 1990s, and especially after my official “retirement” at the end of 2001) is that I keep all the arguments about a “network” of liberty-related issues on the floor, available at all times.  Even with a modest number of unique visitors (who don’t know me), there is an influence on policy way beyond my own numerosity of 1.  I could say I’m “keeping them honest”.  I’ve had very good up time reliability over all the years, and in the earlier years, the simple organization of my sites with simple html caused many articles to rank high in search engines (above those of established companies and organizations), with no optimization, even without attention to metatags.

So, you can imagine my annoyance at appeals for donations from sites that purport to speak for me as a member of one group or another.  And also my annoyance of the slogans and baby talk of most political campaign ads.  In fact, I don’t donate to candidates.  Here we get more into my head.  Ironically I perceive needing to have a “strongman” protect me from would be a sign of my own status as a “loser” (and how does that come across as “Trump-talk”?)

Likewise, I have some inner disdain for the idea of being a “marketeer” (something touted by some ads on my sties even).  I remember a job interview onetime in 2002 where the “sales” person (for a financial service) said “We give you the words.”  I don’t need anyone to do that for me.  That sounds like something to appeal to someone not “smart” enough to do anything other than hucksterizing.  I don’t like to manipulate others, and I don’t get manipulated (just like I don’t join mass movements as in Eric Hoffer’s “The True Believer“).   But I know this sounds like posturing from a position of “unearned privilege”.  The tone of numerous solicitations I got after “retirement” seemed to be that I was mooching and should grovel for customers like everyone else (indeed, even if that meant manipulating people to get subprime mortgages), so that the selling playing field was fairer to “them”.  “Always be closing”, indeed!

OK, I can think back, and remember even Mark Cuban said the other day, he had a knack for selling door-to-door, as his first job selling sneakers at 12 (story).  Today, when I think of door-to-door I wonder about home invasions;  and with telemarketing, I wonder about robocalls and scams.  You can see how false pride and insularity, as it becomes more common,, only adds more divisions in our culture and makes it harder for a lot of people to earn a living at all.  Make America Great Again, indeed!

This biggest “objection” from some quarters seems to be that a presence like this that doesn’t pay its own way (in terms of the way a business other than a proprietorship would have to report) represents a possible public risk (getting back to the Gladwell reference on football that I started out with).  It requires a permissive legal culture for me to be able to post anything I want under my own “publicity right” with no gate keepers.  One of the mechanisms that makes this possible, as I have explained elsewhere on legacy blogs, is limits on downstream liability for service providers (Section 230 for defamation or privacy issues;  DMCA safe harbor for copyright).  Without these protections, user-generated content as we know it now (and “citizen journalism”) would not be possible.  Only content that made money on its own could get published (which was pretty much how things were until the 1990s), and “getting published” meant something.

The implicit security problems, of course, are abuse, particularly recruiting of young people for criminal or enemy activity (as by ISIS), and the issue of cyberbullying, as mentioned by Melania Trump recently. It’s all too easy for me to imagine Donald Trump saying in a speech shortly after winning (if he won) that there is no legitimate reason the country should tolerate these risks, given the peril.  Web sites, he could argue, should carry their own freight, and be able to pay employees and support families if they stay up. Remember how he measured teams simply by “money” on “The Apprentice”?  He could indeed become “The Accountant” in a very narrow sense.

That is to say, the permissiveness that benefits me, allows danger to others, especially less advantaged parents raising kids.  (Well-off kids with educated parents don’t usually have as many problems with this, and generally well-off kids learn to “make it” in the real world.  This is definitely related to economic class and even race.)

As for the national security and ISIS risk, one could probably counter that most of the recruiting material is actually accessed from the Dark Web anyway, off shore, in encrypted and untraceable fashion;  and most of this illicit activity involes P2P, BitTorrent,. TOR, and other “clandestine practices” like digital currency.  All of these things have morally legitimate uses (especially in other countries with authoritarian leadership) and their own followings and adherents. (A lot of people have invested their hearts into bitcoin just as I have done with my own versuon of “citizen journalism”.)

Still, Trump, late in 2015, made some vague proposals for “shutting down” much of the Internet, and some in Congress (like Joe Barton, Nov. 5 posting) have wanted to shut down much of social media (the companies already say they shut down accounts that facilitate terrorism, but it’s impossible to stop new ones from growing like mushrooms).  I can imagine the hit on Wall Street if Facebook and Twitter were forced to close.  One could imagine another model, however, where social networks on line mean exactly that: they are much smaller, and only accessed in white-listed, private mode.   I, for example, use Facebook and Twitter as publication adjuncts;  I really don’t use them to flirt or find “companionship”.  So I have little use for a service like Snapchat, because I don’t need a lot of day-to-day interaction with lots of people. I don’t announce where I am going or what events I will attend on Facebook – for security reasons.  So I don’t “play ball” with friends whose life model is to organize others.

Would the Supreme Court continue to protect speakers from this kind of development (as it seems to have done with COPA and the earlier CDA)?  One problem, it seems to me, is that conceptually, distribution of speech (which used to require gatekeepers, based on profitability) is somewhat a distinct potential “right” from the mere utterance itself.

I do wonder about the business models of many Internet service facilitators (and even POS companes), if they can sustain themselves indefinitely with content that consumers don’t pay for.

It seems that to “sell”, you have to offer something more focused that people want.  Citizen journalism and commentary is not something that you would normally expect to “sell”.  Of course, some socially “questionable” things (porn) do sell “easily”.  So do focused “special interests” (and that bemuses Trump’s message as he often delivers it). But one way to improve “popularity” (and actual sales potential) is meeting special needs.  For temperamental reasons (as I covered yesterday) that isn’t something that I want to identify me as something to be known for.  Meeting need is one thing, but “pimping” need is another.  As I said yesterday, this whole area of “indulgence” drags me down the rabbithole of being identified by other people’s causes, not the ones I chose.  But I can see how it fits the idea of “right-sizing”.

For me, the future of “citizen journalism” comes very much into question, especially if Trump wins.  I understand the questions about the legitimacy of the practice ( well laid out in Wikipedia ) but that journalism is often mixed with original analysis (sometimes from unusual life narrative perspectives, like mine, as well as from professional surveys and studies) and commentary.  The New York Times has an interesting perspective today, “Journalism’s next challenge: Overcoming the threat of fake news”, in the New York Times, by Jim Rutenberg.  Timothy B. Lee of Vox has a relevant piece Nov. 6 “Facebook is harming our democracy...“, with its user-mediated newsfeeds, which has the effect of diluting “real” journalism with amateurism (let alone “clickbaiting”).  On CNN, Ted Koppel (“Lights Out“) told Chris Cuomo  that the public doesn’t trust professional journalism any more.  (On Nov. 11, New York Magazine’s Max Read claimed “Donald Trump won because of Facebook“. My own role is not to replace traditional establishment media but to keep it honest by supplementing it with material that confounds reporting and organizing according to traditional identity politics — but some people just stop reading traditional media altogether and see only what they want to hear from amateurs, reinforcing their “UFO” beliefs.)

I’ve approached these problems before, from the viewpoint of “conflict of interest” (Aug. 7, or here ).  We saw this first back around 2001 (before 9/11) with talk of the need for “employer blogging policies”, especially for associates who have direct reports or make decisions about others.  (That’s what drove Heather Armstrong to go solo and then to invent the word “dooce”).

While Gladwell’s idea of unaccounted “moral hazard” subsumed by others (as well as authoritarian ideas about “right-sizing” individual speech as with Russia and China) ( could cause Trump and some in Congress to want to crimp user generated content, it’s indeed (fortunately) hard to see any straightforward way he could do it.  But (to make “A Modest Proposal”) one way would be to prevent  (“nuisance”) domains from being owned by (or even renewed) by entities that don’t offer full public accounting of their funding, even self-funded proprietorships like mine.  Accounts could have to “pay their own way” with their own revenues (that sounds like Trump’s style of thinking, valuing everything in terms of money).  But, then again, Trump has a lot of trouble disclosing his own good fortune in life very publicly.  But so does Hillary.  This kind of problem could intersect with the Network Neutrality debate, if Trump guts neutrality and allows ISP’s to charge businesses for access to their networks (which wasn’t a problem in practice before 2015, however — and some say that this could be a problem “only” for high-volume “porn” sites).

If my “accomplishment” were taken away from me, from public sight, what be left?   My own model is horizontal, using prior content to build more content (for example, for eventually getting my music performed), but that content must remain public, even if it doesn’t pull in short term revenue, to remain strategically effective. Pimping victimhood or group loyalty?  I’d love to get on with a real news outlet reporting critical things that the media just hasn’t covered well (like electric power grid security, as with Koppel’s book).  Or should I just “merge” with Wikipedia?  Actually, there’s no article on me there yet.

(Posted: Monday, Nov. 7, 2016 at 4 PM EST)