New litigation regarding an image of an NFL star may threaten use of embedded images and videos by amateurs on the web

There is some new litigation which appears to threaten a sacrosanct principle in the user-generated content world on the Internet:  that generally, embeds of copyrighted videos or photos do not create secondary liability for the web publisher doing the embed, because an embed is essentially just a hyperlink – that is, the legal equivalent to a footnote on a college term paper.

However, recently Justin Goldman, backed by Getty Images, has sued several prominent news websites (Breitbart, Time, and the Boston Globe) for hyperlinking through embed code to an image of New England Patriots pro football quarterback Tom Brady. It’s true that these are substantial news companies, not individual uses (so this is not like “Righthaven”).  Kit Walsh and Karen Gullo ran a legal analysis in Electronic Frontier Foundation Oct. 24, 2017, “What if you had to worry about a lawsuit every time you linked to an image online?”  The article links to EFF’s own amicus brief through a Scribd PDF.  The litigation is filed in the Southern District of New York.

This whole issue had started back in 2000, with some companies trying to stop other sites from deep-linking into them, denying them ad revenue.  Courts quickly established the “English teacher rule” based on the footnote and bibliography analogy. But there was some more litigation, particularly over embeds, around 2006 or 2007.   One of the leading cases was Perfect 10 v. Google (settled in the Ninth Circuit in San Francisco).

The amicus brief gets into some ancillary issues.  One could be contributory infringement. Possibly, a website that embeds material it knows is infringing and, behind the scenes, encourages the original infringement, shares the liability.  One would wonder if the plaintiffs are attacking a culture of amateur propagation of infringing material, but then again the defendants are not amateur users. It’s worth noting that in a different area, defamation, there have been a few cases of successful litigation against websites that deliberately linked to defamatory material.

As a practical matter, one could wonder if this case could create problems for YouTube embedding. Normally, when YouTube gets a complaint, under DMCA Safe Harbor it deletes the offending video and all embeds to it simply stop working and give a gray subscreen, but the secondary bloggers are not pursued.  I try to embed only videos that “look” legitimate (like I don’t embed  a free full movie unless I believe the distributor authorized it).  Some publishers, like CNN, tend to attract a lot of pirated videos of their content that quickly disappear from YouTube but don’t put up timely previews or trailers for their own shows on time.  Most motion picture distributors put up their own trailers under their own brands, and these are OK.

The amicus brief notes that liability for using an embedded video for public display like on a Jumbotron in a sports bar might exist under other laws.  The brief also questions why the parties who hosted the actual copyright infringing image were not named as defendants.

The brief also notes that embedding images doesn’t normally create a right of publicity claim for the subject.

As an ancillary matter, it’s worth noting that typically the photographer to takes an image usually owns the copyright, not the subject, unless there is an agreement beforehand.   That’s covered here by “Photoattorney”.  But in some countries the law is different, and it can even be illegal to take someone’s photo without permission in some countries, even France.

If someone takes a photo of a copyrighted image and uploads it into a blog, that could lead to liability (because the blogger stored another copy of the image).  In practice, there are many situations where the blogger knows that the image is in public domain or that the original owner has no real interest in copyright claims, but one should be careful with this.  Likewise, bloggers should be careful about copying actual digital images.  Wikipedia allows this for most commons images along as proper attribution (including CCSA level) is stated.

There was a bill proposed in 2011, S. 978  which could, taken literally, imprison someone for embeds a copyrighted video if 10 people watched it (the “10 strikes law”).   The bill apparently died.

(Posted: Saturday, October 28, 2017 at 1 PM EDT)

Families of San Bernadino terror attack victims sue Facebook, Twitter, Google over “propaganda” arguments that evade Section 230

Families of victims of the fall 2015 terror attack in San Bernadino, CA are suing the three biggest social media companies (that allow unmonitored broadcast of content in public mode), that is Facebook, Twitter, and Google. Similar suits have been filed by victims of the Pulse attack in Orlando and the 2015 terror attacks in Paris.

Station WJLA in Washington DC, a subsidiary of the “conservative” (perhaps mildly so) Sinclair Broadcast Group in Baltimore, put up a news story Tuesday morning, including a Scribd PDF copy of the legal complaint in a federal court in central California, here. I find it interesting that Sinclair released this report, as it did so last summer with stories about threats to the power grids, which WJLA and News Channel 8 in Washington announced but then provided very little coverage of to local audiences (I had to hunt it down online to a station in Wisconsin).

Normally, Section 230 protects social media companies from downstream liability for the usual personal torts, especially libel, and DNCA Safe Harbor protects them in a similar fashion from copyright liability if they remove content when notified.

However, the complaint seems to suggest that the companies are spreading propaganda and share in the advertising revenue earned from the content, particularly in some cases from news aggregation aimed at user “Likenomics”.

Companies do have a legal responsibility to remove certain content when brought to their attention, including especially child pornography and probably sex trafficking, and probably clearcut criminal plans. They might have legal duties in wartime settings regarding espionage, and they conceivably could have legal obligations regarding classified information (which is what the legal debate over Wikileaks and Russian hacking deals with).

But “propaganda” by itself is ideology. Authoritarian politicians on both the right and left (Vladimir Putin) use the word a lot, because they rule over populations that are less individualistic in their life experience than ours, where critical thinking isn’t possible, and where people have to act together. The word, which we all learn about in high school civics and government social studies classes (and I write this post on a school day – and I used to sub), has always sounded dangerous to me.

But the propagation of ideology alone would probably be protected by the First Amendment, until it is accompanied by more specific criminal or military (war) plans. A possible complication could be the idea that terror ideology regards civilians as combatants.

Facebook recently announced it would add 3000 associates to screen for terror or hate content, but mainly on conjunction with Facebook Live broadcasts of crimes or even suicide. I would probably be a good candidate for one of these positions, but I am so busy working for myself I don’t have time (in “retirement”, which is rather like “in relief” in baseball).

Again, the Internet that we know with unfiltered user-generated content is not possible today if service companies have to pre-screen what gets published for possible legal problems. Section 230 will come under fire for other reasons soon (the Backpage scandal).

I have an earlier legacy post about Section 230 and Backpage here.

(Posted: Tuesday, May 9, 2017 at 1 PM EDT)

Downstream liability concerns for allowing others to use your business or home WiFi connection, and how to mitigate

A rather obscure problem of liability exposure, both civil and possibly criminal, can occur to landlords, businesses, hotels, or homeowners (especially shared economy users) who allow others to use their WiFi hubs “free” as a way to attract business.

Literature on the problem so far, even from very responsible sources, seems a bit contradictory.  The legal landscape is evolving, and it’s clear the legal system has not been prepared to deal with this kind of problem, just as is the case with many other Internet issues.

Most hotels and other venues offering free WiFi take the guest to a strike page when she enters a browser; the guest has to enter a user-id, password, and agree to terms and conditions to continue.  This interception can normally be provided with router programming, with routers properly equipped.  The terms and conditions typically say that the user will not engage in any illegal behavior (especially illegal downloads, or possibly downloading child pornography or planning terror attacks).  The terms may include a legal agreement to indemnify the landlord for any litigation, which in practice has been very uncommon so far in the hotel business.  The router may be programmed to disallow peer-to-peer.

There is some controversy in the literature as to whether Section 230 of the 1996 Telecommunications Act would hold hotels and businesses harmless.  But my understanding that Section 230 has more to do with a content service provider (like a discussion forum host or a blogging service provide) being held harmless for content posted by users, usually for claims of libel or privacy invasion.  A similarly spirited provision in the Digital Millennium Copyright Act of 1998, called Safe Harbor, would protect service providers for copyright infringement by users.  Even so, some providers, like Google with its YouTube platform, have instituted some automated tools to flag some kinds of infringing content before posting, probably to protect their long-term business model viability. Whether Section 230 would protect a WiFi host sounds less certain, to me at least.  A similar question might be posed for web hosting companies, although it sounds as though generally they are protected.  Web hosting companies, however, all say that they are required to report child pornography should they happen to find it, in their AUP’s. You can make a case for saying that a telecommunications company is like a phone company, an utility, so a hotel or business is just extending a public utility. (That idea also mediates the network neutrality debate, which is likely to become more uncertain under a president Trump.)

Here’s a typical reference on this problem for hotels and businesses.

A more uncertain environment would exist for the sharing economy, especially home sharing services like Airbnb.  Most travelers probably carry their own laptops or tablets and hotspots (since most modern smart phones can work as hotspots) so they may not need to offer it, unless wireless reception is weak in their homes.  Nevertheless, some homeowners have asked about this.  These sorts of problems may even be more problematic for families, where parents are not savvy enough to understand the legal problems their teen kids can cause, or they could occur in private homes where roommates share telecommunications accounts, or where a landlord-homeowner takes in a boarder, or possibly even a live-in caregiver for an elderly relative.  The problem may also occur when hosting asylum seekers (which is likely to occur in private homes or apartments), and less often with refugees (who more often are housed in their own separate apartment units).

It’s also worth noting that even individual homeowners have had problems when their routers aren’t properly secured, and others are able to pick up the signal (which for some routers can carry a few hundred feet) and abuse it.  In a few cases (at least in Florida and New York State) homeowners were arrested for possession of child pornography and computers seized, and it took some time for homeowners to clear themselves by showing that an outside source had hijacked the connection.

Comcast, among other providers, is terminating some accounts with repeated complaints of illegal downloads through a home router.  In some countries, it is possible for a homeowner to lose the right to any Internet connection forever if this happens several times, even If others caused the problem.

Here are a couple of good articles on the problem at How-to-Geek and Huffington, talking about the Copyright Alerts System.  Some of this mechanism came out of the defeated Stop Online Piracy Act (SOPA), whose well-deserved death was engineering in part by Aaron Swartz, “The Internet’s Own Boy”, who tragically committed suicide in early 2013 after enormous legal threats from the Obama DOJ himself.

Along these lines, it’s well to understand that automated law enforcement and litigation scanning tools to look for violations are becoming more common on the Internet.  It is now possible to scan cloud backups for digital watermarks of known child pornography images, and it may become more common in the future to look for some kinds of copyright infringement or legal downloads this way (although content owners are good enough detecting the downloading themselves when it is done through P2P).

Generally, the best advice seems to be to have a router with guest-router options, and to set up the guest account to block P2P and also to set up OpenDNS.  An Airbnb community forum has a useful entry here.  Curiously, Airbnb itself provides a much more cursory advisory here, including ideas like locking the router in a closet (pun).

I have a relatively new router and modem combo from Comcast myself.  I don’t see any directions as to how to do this in what came with it.  I will have to call them soon and check into this.  But here is a typical forum source on guest accounts on Xfinity routers.  One reverse concern, if hosting an asylum seeker, could be that the guest needs to use TOR to communicate secretly with others in his or her home country.

It’s important to note that this kind of problem has come some way in the past fifteen years or so.  It used to be that families often had only one “family computer” and the main concerns could be illegal content that could be found on a hard drive.  Now, the concern migrates to abuse of the WiFi itself, since guests are likely to have their own laptops or tablets and storage devices.  There has also been some evolution on the concept of the nature of liability.  Up until about 2007 or so, it was common to read that child pornography possession was a “strict liability offense”, which holds the computer owner responsible regardless of a hacker or other user put it there (or if malware did).  In more recent years, police and prosecutors have indeed sounded willing to look at the usual “mens rea” standard.  One of my legacy blogs has a trace of the history of this notion here; note the posts on Feb. 3 and Feb. 25 2007 about a particularly horrible case in Arizona.  Still, in the worst situations, an “innocent” landlord could find himself banned from Internet accounts himself.  The legal climate still has to parse this idea of downstream liability (which Section 230 and Safe Harbor accomplish to some extent, but evoking considerable public criticism about the common good), with a position on how much affirmative action it wants those who benefit from technology to remain proactive to protect those who do not.

(Posted: Monday, January 9, 2017 at 10:45 PM EST)

Update: Tuesday, Jan 24, 2017, about 5 PM EST

Check out this Computerworld article (Michael Horowitz, “Just say No” [like Nancy Reagan] June 27, 2015) on how your “private hotspot” Xfinitywifi works.  There’s more stuff below in the comments I posted .  To me, the legal situation looks ambiguous (I’ve sent a question about this to Electronic Frontier Foundation; see pdf link in comment Jan. 24).  If you leave your router enabled, someone could sign onto it (it looks if they have your Xfinity account password, or other password if you changed it).  Comcast seems to think this is “usually” OK because any abuse can be separated to the culprit.

 

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)

 

Music industry (and probably Hollywood) wants an even tougher DMCA

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On Wednesday, June 1, 2016, the Business Day section of the New York Times led off with a story by Ben Sisario, “Music world asks to change law to get better deal with YouTube” .  This latest outburst from the establishment concerns the Safe Harbor of the Digital Millennium Copyright Act of 1998.

Google has a system called Content-ID, which copyright owners can join (sometimes through agents or affiliates).   The use partially automates prescreening for obvious infringement.

We’re all familiar with the problem of quick takedowns of videos for alleged copyright infringement, and with Electronic Frontier Foundations many posts on the subject.  Violators can appeal, and EFF has a detailed guide that walks the speaker through the appeal process after a takedown.  There seems to be real disagreement on what constitutes Fair Use (including “mashups” of pre-existing material).

Nevertheless, the music industry complains, that earning money through YouTube is hard, at a time when vinyl and CD sales, and actual mp3 sales, too, have declined.  Looking for violators, the industry says, is still laborious.  YouTube closes accounts for repeat violators (I’ve often seen that with embeds) but new accounts get created and repost offending material.

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I use YouTube to play classical music, especially ends of major postromantic compositions, most of which I have legal CD (or even vinyl) copies of; but it is much easier to play on a computer (with the sound and speaker quality being as good now) than to look for a physical copy.  Forty years ago, as a young adult, I was much better at keeping a record collection (maybe vulnerable to disaster) organized than I am now.  As a consumer, I would be happy to have an entire collection in the Cloud – which you can set up with Amazon or iTunes) – but I would need to learn to use it that way, and there would have to be some systematic security, some best practices.  I could also imagine keeping an entire collection on a hard drive, backed up by a Cloud Service – but I’d need my own backups of that, too, just incase of ransomware.  So YouTube makes listening easy.  It’s more about convenience and labor than money, for me, as a consumer.

And I empathize with the need for artists to make a living on their work.  I have friends in NYC and LA (and, as it happens, Belgium) in that situation.  I’ve bought stuff through Bandcamp, and had some technical issues.  But artists face other issues, like getting gigs or acting roles, or getting commissions for composition.

I’m not sure exactly what changes in the DMCA the music industry wants now.   James Grimmelmann, a professor at the University of Maryland law school, warns, “Anything that rewrites the DMCA isn’t going to affect just YouTube; … It’s going to affect blogs. It’s going to affect fan sites. It’s going to affect places for games creators and documentarians and all kinds of others.”  I’ve wondered of bloggers could be liable for embedding video that infringes.  EFF says, no, because an embed is just a hyperlink. I think there could be a problem with deliberately embedding something you know infringes, and I don’t embed YouTube or Vimeo videos that appear likely to be illegal to me.  When possible, for movie trailers, I prefer trailers from the movie distributors or production companies themselves.  For television content, I prefer content originating from the broadcast companies (CNN, Fox, NBC, ABC) themselves, if possible.  I have seen embeds disappear and go gray for copyright, but I simply replace them when I find them.

Mundane Matt explains how content creators use Content-ID, and how they used to have to be “vetted”.   He also discusses frivolous copyright claims over small stuff, and how Fair Use doesn’t protect most account holders in practice.  Most YouTube videos get their hits and make their ad money in the first few days of posting when based on news, he says. So YouTube is developing a way to pay both the user and copyright owner “properly” once a dispute is resolved, but the process is tricky and difficult.

Another discussion, for a different post, is how “free content” from amateurs not trying to make a living on their soapboxes could indirectly affect the music and video world for people who do need to sell.

(Published: Thursday, June 2, 2016, at 12 Noon EDT)

The “Fifth Estate” could have to fight harder in the future, especially if Trump is elected; an overview

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This new commentary blog is intended to look outward to the world, not just focus on pingbacks to my own narrative. But my own experience with self-publication, most of all online (as detailed in Chapter 10 of my second DADT book) provides a gamer’s road map to all the major issues.

When I self-pubbed my first DADT book with my own printing in 1997 centered around my own narrative encircling the military gay ban, I expected word-of-mouth to sell copies, and indeed that happened, especially in the first eighteen months or so.  A couple speaking engagements in the Twin Cities (at Hamline University and then the University of Minnesota, as well as a Unitarian fellowship) helped.  I also networked a lot with the Libertarian Party of Minnesota, another topic that I’ll come back to soon (given the national party’s convention in Orlando, just finished, and how it could affect the 2015 race).

In the summer of 1998, I did put the entire text of the book online for viewing and lookup. In time, I was heavily indexed in Google and many other search engines, without having to do much work with metatags to attract them.  I was clearly attracting a non-paying audience (judging from email response of the times) with free search engine exposure.  I was entering a new paradigm, “Fame” (like the movie) and the asymmetric ability to affect a political debate without money.  Indeed, this was the predictor of Reid Ewing’s sequence of videos in 2012, “It’s Free”.

My practice would become controversial. It’s also uninsurable (see the book) as the risk is unknown, byt I have yet to be served (knock on wood).  Yes, I do get chased to pimp copies of my books (overpriced).I don’t need to make money from the publishing since I am “retired” (and previously had accumulated “rentier” assets in the stock market) but some people think my practice undermines their ability to make a living.  I’ve heard that from LP friends (I am the new “threat”), and even Mark Cuban told me in an email that this was probably a bigger issue for big publishers and Hollywood than actual piracy.

My strategy, with flat sites of simple html, as extremely effective until well after 9/11.  Gradually, social media eventually stole the thunder of a lot of what I had done.  Not so much Myspace, but indeed Facebook and Twitter (and Instagram).  But now I use social media platforms myself.  They actually solved one problem for me somewhat (“conflict of interest”, as I had seen it, as explained here  and here , note also the 2000 white paper on employee COI ), while creating new ones.  Blogging gradually replaced flat sites, and I started using Blogger in early 2006.

I’m getting ahead of myself, but I did want to outline the major strategic “threats” to my ability to continue this activity, which has indeed comprised my Second Life.  One was the possibility of being forced (by threat of prosecution) into self-censorship, as represented by the Communications Decency Act of 1996 and later COPA, the Child Online Protection Act of 1998.  The other major concern would center around the major possible intellectual property torts, like copyright infringement, trademark, and then harm areas like defamation, invasion of privacy, insofar as these are possible perils that I, the speaker, could encounter.  More serious is depending on a permissive climate that facilitates cyberbullying and recruiting of terrorists online. That’s maybe some “bad karma”.  This leads to a discussion of downstream liability of service providers and publishing platforms.

The original CDA could have been  quite draconian, but the censorship portions were struck down by the Supreme Court in 1997.  I actually attended the oral arguments in March 1997. In 1998, just as my online stuff was starting to get found a lot, Congress passed COPA.   I give a summary of my involvement with COPA on my “do ask do tell notes” blog here.  This was a major element of my online life from 1998 until 2007. The Supreme Court had weighed in twice before the final district court ruling (and I went to the oral arguments the second time).  I have more details on my legacy site here.

The irony of the CDA is that it was part of a bigger Telecommunications Act of 1996, one provision of which, Section 230, gives service providers immunity from downstream liability for torts committed by users in generating “amateur” content.  Electronic Frontier Foundation as a major primer on the topic here.  Section 230 shields intermediaries from liability from secondary liability for various torts, the most likely of which is defamation (with “online reputation” issues compounded for others), but which would also include invasion of privacy, and probably the results of cyberbullying and terror recruitment, for example.

The defamation issues crop up repeatedly with “review sites” like Yelp!, where some contractors and medical or dental providers try to force customers to sign controversial (and morally objectionable) no-disparagement clauses.  Privacy has come up in the notorious Gawker case, which also raises the question as to whether big business interests should subsidize combative litigation of others.  Defamation suits are less common on ordinary blogs and older sites.  However, a major problem, somewhat connected to review sites, has been SLAPP, or strategic lawsuits against public participation, somewhat problematic in states with weaker consumer protection laws.  There is still no federal anti-SLAPP law.

US law is more protective of providers than most other countries, and Section 230 has its critics.  There have been proposals, for example, that Section 230 become overridable by state laws.  Others, especially on the Left, say that, since big tech companies are so profitable (the biggest companies that survived the Dot-com bubble), they should share in the responsibility for the horrific outcomes of cyberbullying and terror recruitment.  Major tech companies do remove objectionable content (as TOS violations) that is brought to their attention, and have some ability to filter some material (like ISIS propaganda).  Recently, the companies have promised the EU to “step right up” and remove flagged content within 24 hours.

Ethically connected to the issue of privacy invasion is the idea of a “right to be forgotten”, which is being enforced in Europe and causing quite a bit of expense and headache for search engine companies in removing old results of true but damaging information (like petty convictions or old debts or foreclosures), material that in the old world would have taken a lot of trouble to look up manually at physical county courthouses in “public records”.   Site content itself is not removed, just search results.  But in maybe three unusual cases, I have been asked to remove information involving specific parties from my own sites.

The other big pillar of legal risk would, of course, be copyright.  I had to ponder this when writing my first book in the 1990s.  There was a whole cottage industry for securing permission for “quotes”.  I wound up simply keeping my quotes shorter than I had originally wanted.  The analogue of Section 230 is the “Safe harbor clause” of the Digital Millennium Copyright Act if 1998, which shields providers from secondary library for copyright infringement if they take down infringing material immediately. The major objection is that large media companies bully individuals, and that YouTube and others sometimes take down material without due process on frivolous claims, although there is an appeal process.  There is little practical incentive not to file these claims.  And in 2011, especially, we fought the battles to stop PIPA and SOPA which would have effectively given major media companies unprecedented power to have sites removed from the web for the infringement of just one user.  This has happened anyway (as with the MegaUpload case).  Likewise, some bloggers have had to fend of copyright trolls (like Righhaven) for copying news stories and photos from some smaller newspapers which joined in the litigation. I don’t do this myself.  Frivolous trademark claims against domain names have sometimes been a problem, when they involve common words or come from unrelated business areas (in contradiction to actual trademark law in the US). YouTube (Google) does have some pre-screening automation that copyright owners can join and use, called Content-ID, and this seems to be an evolving product creating some controversy on its own.

Coming back to my “It’s free” paradigm, there is also the issue of what I would call amateurism and “gratuitous speech”, which is soap-box activity (like mine) outside the area of more usual narrow-issue speech from political pressure groups, and from established media.  YouTube used to encourage this process with the slogan “Broadcast yourself!”  I argue, that as a member of the “Fifth Estate” moving toward the “Fourth” (rather like Clive Barker’s “Dominions”)   I claim that the value of my gratuitous speech is that it “connects the dots”.  But companies could find it much less profitable in the future to provide the platforms for free stuff, as people put up “do not track” and ad blockers.

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I could also reinforce the concerns about insurance in the future.  If health insurance is mandatory, I can imagine pseudo-progressive arguments that media perils ought to be required too (because user-generated content comes with some collective risk, given all the benefits on keeping the powers that be –and the Fourth Estate — honest).  Auto and home casualty insurance companies should be very careful about packaging coverage for Internet use (including identity theft as well as liability) with protection from losses due to conventional accidents, crimes, and tornadoes or hurricanes.  The actuarial risk (especially of frivolous, SLAPP or troll-sourced litigation) is not possible to calculate, and yet auto companies already bundle all of this in high-end umbrella coverage, which could cause unintended consequences (and anti-selection, and then cancellations) down the road.

Indeed, gratuitous “self-broadcast” could come under fire, if looked at differently for “secondary risks”, as I fear could happen if Donald Trump is elected.  Remember, Trump last fall suggested shutting down parts of the Internet (related to user generated content) if companies couldn’t get a handle on the terror recruiting, which he can argue is an existential threat that doesn’t need gratuitous invitation.  (Trump has wanted to lower the bar to allow public figures to sue media companies and presumably bloggers with lower standards of malice.) Possibly, I could attract enemies and indirectly put others in danger of targeting, which I could imagine could even be an issue for future landlords, for example.   It’s part of a style of tribal thinking that I have had to pay more heed to in recent years.   But any activity that interacts with the public has its own risks (like, say, selling life insurance or tax planning, something I have fielded unsolicited appeals to do instead).  There are philosophical questions, about helping others directly and getting meaning in doing so.  But I can’t let others use my own life as a bargaining chip.

(Published Monday, May 30, 2016 at 1 PM EDT)

What rights do consumers really have when “buying” digital products online?

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When you “buy” a copy of a movie or music mpeg online, do you have the right to lend or give that copy away, just as with physical phonograph records, CDs, VHS or Beta tapes, or of course DVD’s?  All of this is related to the “first sale” doctrine.

Don’t confuse this with another idea:  under the Digital Millennium Copy Right Act of 1998, you don’t have a right to make copies of the CD’s and DVD’s, and there are copy protection firmware devices to make this difficult.

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I can remember, back in the 1960s, myself and another friend sometimes made open-reel tapes of records.  I remember taking a tape of Verdi’s Requiem and other favorite records on my first extended business trip to Indiana from the East Coast back in 1970 (throwing a tape deck in the trunk for the temporary move).  This was probably illegal, but we justified it morally because we both bought a lot of vinyl records.

But even to share or lend digital copies, it seems not.

Electronic Frontier Foundation has an article by Kit Walsh, “What do costumers think when they buy digital media online?”   The article goes into the differences between “Buy Now” and “License Now”.  It would seem intuitive that “License now” would confer fewer rights.  It would be more like renting a movie or video for a short period.  The paper refers to a U-Cal Berkeley study of “What We Buy When We ‘Buy Now'” by Aaron Perzanowski and Chris Jay Hoofnagle.  (I am reminded of “Buy More” in the NBC “Chuck” series with Zachary Levi.

My experience is that when I buy a copy of music or a movie, I own the “copy” in the Amazon or Apple cloud.  I do depend on the companies’ staying in business and for the cloud infrastructure to work (not be destroyed by enemies and hackers, but that can happen with physical property).  I did have a problem recently working with an Amazon rental (it needed a new Silverlight version) and an opera  (Chris Cerrone’s interesting “Invisible Cities”) MPG (had trouble saving it, but I had watched the opera “free” on YouTube and effectively paid the artist through Bandcamp about $10 for what amounted to a rental or a  Soho-style theater ticket).

Keep in mind another possible threat: items stored in clouds (“nuages”) could someday be scanned for illegal content.  Maybe a recent strengthening of electronic privacy (countering the 180 rule) will help counter that risk (Congressional link on HR 699).  This concept could come up either with direct cloud storage or with saving an object on one’s own hard drive and allowing a cloud backup service to archive it. Stay tuned on this.

(Published: Friday, May 13, 2016 at 2 PM EDT)