Not Easy, Not Unreasonable, Not Censorship: The Decision To Ban Trump From Twitter

from the there's-a-point... dept

When I started writing this post, it was about Facebook's decision to suspend Trump's account indefinitely, and at least until Joe Biden is inaugurated in a couple weeks. I had lots to say on that... and then Friday afternoon, Twitter decided to ban Trump's Twitter account permanently. This is a bigger deal, not just because it's permanent, rather than indefinite, but because so much of Trump's identity over the last four years (and before that) is tied up in his Twitter account and followers.

Certainly, all of this has kicked off a whole new storm from across the political spectrum. You have Trump supporters who are furious and (falsely) claiming that this is "censorship" or unprecedented and heavy handed (it is none of those things). Then you have Trump haters who are screaming about how this is all way too late and is trying to close the barn door after the horses have long since bolted. I think neither argument is accurate. Will Oremus has a long (and very interesting!) look over on OneZero about how Facebook supposedly chucked out its own rulebook to come up with an excuse to suspend Trump's account:

Yet Facebook’s “indefinite” ban on Trump marks an overnight reversal of the policy on Trump and other political leaders that the social network has spent the past four years honing, justifying, and defending. The unprecedented move, which lacks a clear basis in any of Facebook’s previously stated policies, highlights for the millionth time that the dominant platforms are quite literally making up the rules of online speech as they go along. As I wrote in 2019, there’s just one golden rule of content moderation that every platform follows: If a policy becomes too controversial, change it.

Zuckerberg’s claim that Facebook has allowed Trump to use its platform in a manner “consistent with our own rules” is laughable. The only thing that has been consistent, until now, is Facebook’s determination to contort, hair-split, and reimagine its rules to make sure nothing Trump posted would fall too far outside them. The Washington Post wrote a rather definitive account of the social network’s yearslong Trump-appeasement campaign earlier this year. Among other Trump-friendly measures, the Post noted, “Facebook has constrained its efforts against false and misleading news, adopted a policy explicitly allowing politicians to lie, and even altered its news feed algorithm to neutralize claims that it was biased against conservative publishers.”

And Twitter is also justifying its decision by saying that the reason was a rules violation:

We assessed the two Tweets referenced above under our Glorification of Violence policy, which aims to prevent the glorification of violence that could inspire others to replicate violent acts and determined that they were highly likely to encourage and inspire people to replicate the criminal acts that took place at the U.S. Capitol on January 6, 2021.

This determination is based on a number of factors, including:

I don't need to post the factors. You can take a look yourself if you want. So, Oremus is mostly correct that they're making the rules up as they go along, but the problem with this framing is that it assumes that there are some magical rules you can put in place and then objectively apply them always. That's never ever been the case. The problem with so much of the content moderation debate is that all sides assume these things. They assume that it's easy to set up rules and easy to enforce them. Neither is true. Radiolab did a great episode a few years ago, detailing the process by which Facebook made and changed its rules. And it highlights some really important things including that almost every case is different, that it's tough to apply rules to every case, and that context is always changing. And that also means the rules must always keep changing.

A few years back, we took a room full of content moderation experts and asked them to make content moderation decisions on eight cases -- none of which I'd argue are anywhere near as difficult as deciding what to do with the President of the United States. And we couldn't get these experts to agree on anything. On every case, we had at least one person choose each of the four options we gave them, and to defend that position. The platforms have rules because it gives them a framework to think about things, and those rules are useful in identifying both principles for moderation and some bright lines.

But every case is different.

And no matter what you think of Trump, his case was different.

The regular rules could never apply to Trump because Trump is not a regular person. And, no, not even comparisons to foreign leaders are apt, because as silly as American exceptionalism is, the United States is still different than nearly every other country in the world. And, it's not just the position he's in (for the next few days anyway), but also Trump's willingness to use his account to make pronouncements unlike pretty much any other world leader (or at least, world leader of consequence).

Trump is, perhaps, the perfect example of why demanding clear rules on social media and how they moderate is stupid.

As for the question of why now? Well, clearly, the context has changed. The context is that Trump inspired a mob of goons to invade the Capitol building this week, and there remain legitimate threats that his cultish followers will continue to do significant damage. Certainly some people have insisted that this kind of violence was always a risk -- and it was. But it had not actually erupted to this level in this fashion. Again, we're talking about context. There's always more context.

And given that the situations are always edge cases, that the context always matters, and that things are always shifting, you can totally see why it's a reasonable decision to ban Trump from their platforms right now, based on everything else going on, and the likelihood that he might inspire more violence. I think it's worth reading Ben Thompson's analysis as well. He's long explained the risks associated with banning Trump from these platforms, and suggested why they should not have in the past. But the thing that changed for him, beyond even just the threat to democracy, is the threat to the rights of both individuals and companies to make their own decisions on these things:

Remember my highest priority, even beyond respect for democracy, is the inviolability of liberalism, because it is the foundation of said democracy. That includes the right for private individuals and companies to think and act for themselves, particularly when they believe they have a moral responsibility to do so, and the belief that no one else will. Yes, respecting democracy is a reason to not act over policy disagreements, no matter how horrible those policies may be, but preserving democracy is, by definition, even higher on the priority stack.

Turn off Trump’s account.

But here's the more important point -- especially directed at the people who will falsely claim that this is somehow censorship: President Trump is not being censored. He is not being limited. At any moment of any day (certainly for the next two weeks, and likely beyond) he can walk out of his office and have every major TV news channel (and every internet streaming platform) broadcast whatever he wants to say, and people will see it.

And to those who think that Twitter should have done this earlier, or that it would have made a difference, recognize that your concern is not so much with Twitter, but with Trump himself. Remember that while Trump might not be able to send a tweet right now, he still (literally) has the power to launch nuclear missiles at Twitter's headquarters. And, really, that's the problem. Trump is obviously too toxic for Twitter. But he's also too toxic for the White House. And the real complaint shouldn't be about Twitter or Facebook acting too late, but about Congress failing to do their job and remove the mad man from power.

Filed Under: adaptability, censorship, consequences, content moderation, donald trump, free speech, platforms, rules, section 230, social media
Companies: facebook, twitter

Elsevier Wants To Stop Indian Medics, Students And Academics Accessing Knowledge The Only Way Most Of Them Can Afford: Via Sci-Hub And Libgen

from the copyright-is-not-an-inevitable,-divine,-or-natural-right dept

Last month Techdirt wrote about some ridiculous scaremongering from Elsevier against Sci-Hub, which the publisher claimed was a "security risk". Sci-Hub, with its 85 million academic papers, is an example of what are sometimes termed "shadow libraries". For many people around the world, especially in developing countries, such shadow libraries are very often the only way medics, students and academics can access journals whose elevated Western-level subscription prices are simply unaffordable for them. That fact makes a new attack by Elsevier, Wiley and the American Chemical Society against Sci-Hub and the similar Libgen shadow library particularly troubling. The Indian title The Wire has the details:

the publishing giants are demanding that Sci-Hub and Libgen be completely blocked in India through a so-called dynamic injunction. The publishers claim that they own exclusive rights to the manuscripts they have published, and that Sci-Hub and Libgen are engaged in violating various exclusive rights conferred on them under copyright law by providing free access to their copyrighted contents.

Techdirt readers will note the outrageous claim there: that these publishers "own exclusive rights to the manuscripts they have published". That's only true in the sense that most publishers force academics to hand over the copyright as a condition of being published. The publishers don't pay for that copyright, and contribute almost nothing to the final published paper save a little editing and formatting: manuscript review is carried out for free by other academics. And yet the publishers are demanding that Sci-Hub and Libgen should be blocked in India on this basis. Moreover, they want a "dynamic injunction":

That is, once a defendant's website is categorised as a "rogue website", the plaintiff won't have to go back to the judges to have any new domains blocked for sharing the same materials, and can simply get the injunction order extended with a request to the court's deputy registrar.

The legal action by publishers against shadow libraries is part of a broader offensive around the world, but there's a reason why they may face extra challenges in India -- over and above the fact that Sci-Hub and Libgen contain huge quantities of material that can unambiguously be shared quite legally. As Techdirt reported back in 2013, a group of Western publishers sued Delhi University over photocopied versions of academic textbooks. For many students in India, this was the only way they could afford such educational materials. In 2016, the Indian court ruled that "copyright is not an inevitable, divine, or natural right", and that photocopying textbooks is fair use.

The parallels with the new suit against Sci-Hub and Libgen are clear. The latter are digital photocopy sites: they make available copies of educational material to students and researchers who could not otherwise afford access to this knowledge. The copies made by Sci-Hub and Libgen should be seen for what they are: fair use of material that was in any case largely created using public funds for the betterment of humanity, not to boost the bottom line of publishers with profit margins of 35-40%.

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

Filed Under: academic publishing, academic research, access to knowledge, censorship, copyright, dynamic injunction, india, injunctions, publishers
Companies: american chemical society, elsevier, libgen, sci-hub, wiley

Content Moderation Case Study: Using Copyright To Take Down A Transformative Criticism Video (2019)

from the copyright-as-censorship dept

Summary: In the fall of 2019, talk show host Ellen Degeneres was criticized after being seen attending a professional football game with former President George W. Bush. Degeneres addressed the controversy on her show, saying she was invited by the Dallas Cowboys’ owner, and also suggesting that she was friends with the former President Bush and that people should “be kind” to people they disagree with politically.

Rafael Shimunov took the video of Degeneres giving her side of the controversy and transformed it so that the background showed disturbing images from the Iraq War which was started by President Bush. The clip used approximately half of the video that Ellen herself had posted to YouTube, with the only change being the replacement of the blue background. Soon after that video began to go viral on Twitter, Shimunov and others who had reposted it received notices saying that the video was taken down due to a copyright claim under the DMCA made by someone working for Degeneres’ TV show.

Recipients of the takedown notice said that it appeared to be the work of a social media manager for the show and not an automated takedown.

As the EFF noted in discussing the takedown, the DMCA requires that anyone filing a DMCA takedown notice take into account whether or not the content in question is covered by fair use, and there is little evidence the social media manager filing these notices did so.

Decisions to be made by Twitter:

• Is changing the background in the video transformative enough to make it fair use?
• Should you consider that the images act as commentary on the content of the video?
• How should Twitter deal with copyright holders who ignore fair use in issuing DMCA takedowns of videos?
• Should Twitter re-enable such videos following public controversy?

Questions and policy implications to consider:

• Should social media companies be responsible for judging if content subject to a takedown is covered by fair use?
• Are the current rules regarding fair use and filing false takedown notices clear enough to stop such filings?
• How should the law handle takedowns over content that is fair use?

Resolution: The story of the takedown got widespread press attention and Rafael Shimunov even put up an online petition asking Twitter to put the video back up. However, over a year later, at the time of writing this story, that video remains removed on Rafael’s own Twitter feed, though it has been put back on others.

Originally posted on the Trust & Safety Foundation website.

Filed Under: censorship, content moderation, copyright, criticism, ellen degeneres, george bush, transformative use
Companies: twitter

Alibaba Says It's Not Going After Uighurs (At Least Not Yet)

from the let-us-know-when-to-yeet,-chicom dept

Oh my. Be mindful about the suddenly sensitive Chinese government. Let's not accuse them of things they want to do when those things haven't been done yet.

Maybe it's just a Winnie the Pooh meme. Maybe it's the inability of professional athletes to keep their opinions to themselves. Maybe it's an entire landmass who doesn't want to see its independence crushed by a government that agreed to not crush its independence for the next several years.

Never mind the narratives. Here's what the Chinese government has been doing. It wants certain citizens prosecuted, persecuted, and ejected. The Uighur population of China has been a target for years. Nothing will change that. But it can be made worse.

Huawei -- currently the target of misguided or, at least, hypocritical US government activity -- has been whipping up some AI that goes beyond facial recognition. The AI being built by Huawei will identify people based on the their race, sex, and religious proclivities. Never mind the fact that facial recognition still can't reliably recognize faces. The tech being built by Huawei promises to subject millions of Chinese residents to algorithms at least as untrustworthy as those not being asked to suss out people's race or religious leanings.

The Chinese government isn't worried about backlash. But those still doing business in other parts of the world (like Huawei and others) are. You can't increase market share when the rest of the world considers you an extension of an oppressive government.

Alibaba -- the Amazon of the unregulated -- doesn't want to alienate a user base it's attempting to cultivate. It has issued a statement that serves as a somewhat reluctant middle finger to the Chinese government. There's a whole world of marks out there. Why should Alibaba restrict its hunt for rubes to whatever the Chinese government allows?

Chinese e-commerce giant Alibaba has said it will not allow its technology to be used for targeting or identifying specific ethnic groups.

The statement follows reports that the company’s content moderation technology can pick out Uighur minorities.

Alibaba said it was “dismayed' that Alibaba Cloud developed facial technology that includes ethnicity as an attribute for tagging video imagery.

"We have eliminated any ethnic tag in our product offering," Alibaba said.

Fantastic. That's a relief. Alibaba won't help the government target Uighurs for government persecution, at least as far as its statement aimed at non-Uighurs asserts. But does this mean anything? Security researchers say Alibaba tools/algorithms already give the government the go-ahead to target Uighurs for additional oppression. A public statement may distance Alibaba from government oppression, but the fact that Alibaba continues to operate without interference in China suggests the Chinese government can get what it needs even if the online commerce site says it won't do it for all the tea its government is currently taxing.

Filed Under: censorship, china, facial recognition, oppression, persecution, uighur
Companies: alibaba

Why Don't Conservatives Care About Copyright?

from the your-guess-is-as-good-as-mine dept

I’m certainly not the first person (especially on Techdirt) to point out that if conservatives are really concerned about online censorship, they should be putting copyright law under the microscope, rather than, or at least in addition to, Section 230.

The New York Post debacle and gating President Trump’s post-election tweets are the most recent arrows in the quiver for anti-tech conservatives. It doesn’t have anything to do with copyright (though Hunter Biden’s emails, if they’re real, are eligible for copyright protection). But whenever Section 230 is used as a synecdoche for the more general laws that govern what private tech companies can and can’t do on their sites, I cannot help but ask myself, “why aren’t conservatives up in arms about copyright law?”

I haven’t done a full accounting of all conservative run-ins with online content moderation policies. Still, at least for the President, the only instances something he has posted was taken down–not had a warning label attached, but properly removed–were for copyright infringement. In one case, Trump erroneously blamed Twitter and Section 230 for the removal of a video on copyright grounds.

Trump’s campaign has also gotten into legal trouble by playing music to which he doesn’t have the rights at rallies, and conservative figures have been on the receiving end of clearly bogus claims of copyright infringement. Of course, this isn’t to dismiss other cases where content has been removed, whatever you may think of them. My point is this: Put yourself in the shoes of a right-winger online, and you’d think copyright would get at least as much airtime as Section 230, or any airtime at all. Yet such criticisms are nowhere to be found.

Why is this the case? I have a few theories, though none are particularly satisfying:

One: Copyright is Private Property

I am emphatically against this position, but many conservatives subscribe to the belief that copyright is property and deserves the same moral treatment as tilled land or gathered acorns appropriated by mixing one’s labor with it. My disagreements with this position aside, it’s an idea that must be taken seriously on the merits and, more relevant to this discussion, because it’s a sincerely held belief.

From this vantage point, it’s easy to see why the right isn’t up in arms about DMCA takedown notices, automated copyright systems, or artists not allowing their songs to be used at political rallies. If someone owns their property, they have a claim against the world to exclude others from its use. You’re under no obligation to host a political rally (especially one supporting positions with which you disagree) on your front yard. You can own content in the same way you own your land. Thus you can restrict the use of your work.

This is a straightforward position, but one which contradicts claims of unlawful or unjustified censorship by tech platforms. Twitter and Facebook own their websites in the same way I own my work or someone else owns their lawn. If preventing someone from speaking by using one of these is censorship, they must all be considered censorship.

Though the treatment of works protected by copyright as property seems like an easy way to separate copyright enforcement from content moderation, Twitter has just as strong a claim to ownership of its website as a photographer does to a photo or an artist to a song. Whether or not enforcing one’s copyright constitutes censorship, both these views run into an all-or-nothing wall.

Two: China

The terms “thief” and “infringer” are often used interchangeably. Still, if if you’re criticizing the unauthorized user of a copy who you don’t like for other reasons, you’re more likely to call them a thief due to the negative connotation associated with the word. A thief deprives someone of the fruits of their labor, while an infringer sounds like someone who forgot to check the right box on form E-7A.

And that’s what the U.S. has done in the case of intellectual property violations by Chinese actors. Allegations of theft cover more than just copyright, extending to a wide range of behaviors ranging from outright espionage to strong-arming business partners into transferring technology. And, while there’s no shortage of bootleggers operating out in the open in China, those complaining about Chinese IP theft are more concerned about patents and trade secrets than works protected by copyright.

All that being said, when grievances are aired about the Chinese government, complaints of intellectual property theft inevitably come up alongside far more serious charges against the regime. This tweet from Senator Pat Toomey (R-PA) best illustrates this dynamic:

Whatever you think about the extent of and damage done by these technology transfers, putting that next to two egregious human rights abuses, one of which meets the UN’s definition of genocide, is in extremely poor taste and demonstrates a complete lack of perspective. Still, it shows just how closely we associated IP theft with the other crimes of the CCP.

Were conservatives to confront the serious drawbacks associated with aggressive enforcement of copyright, they would admit that infringement (“theft”) is something we should be less concerned with.Perhaps we should even change the scope of what is covered by copyright, i.e., say what was once “stealing” shouldn’t be.

Decrying Chinese IP theft is most certainly bipartisan, and the beating of this drum helps cement the association of IP theft with “the baddies.” But a subconscious association still doesn’t explain the indifference to the issue. Most of the conservatives’ copyright-related censorship doesn’t deal with the wholesale piracy associated with China, and the PRC is a lucrative export market for works protected by copyright. And all that aside, this train of logic is probably too clever by half.

Three: Stronger Copyright Enforcement Hurts Big Tech

Notice-and-stay-down requirements, expanded reach of ContentID and similar systems, link taxes, or any other measures that (implicitly or explicitly) shift the costs of enforcement from the latter to the former most certainly harm the bottom line of tech companies.

I should point out, of course, that while Google or Facebook can afford to sink tens of millions into copyright filters, this requirement would be crippling to smaller websites and a serious barrier to entry for would-be rivals to these larger platforms. These things matter for competition.

Whether or not these rules make it easier or harder for an upstart to dethrone current dominant platforms, these added costs--either through compliance costs or costs associated with litigation--will most certainly harm big tech’s bottom line. Throw Google v. Oracle into the mix, and it’s easy to see how stronger copyright enforcement is viewed as a way to go after big tech.

A better explanation, then, centers on the political dynamics of techlash. Big tech companies are in everyone’s crosshairs, set up a clear “corporate Goliath interfering with democracy” narrative, and are easier to stay focused on than whichever rights holder objects to their content being used online. Anyone can lay out a laundry list of offenses against big tech companies (some more justified than others), but this or that rights holder (or person claiming to be a rights holder) taking down an infringing image doesn’t lend itself to a clean narrative.

Four: Copyright Isn’t Cool

Whenever someone tells me copyright isn’t sexy, my immediate response is “if that’s true, then why does porn come up so much?” But my personal feelings aside, there comes a time when every copyright nerd must accept one hard truth: copyright law isn’t cool.

For any question of the form “why doesn’t [politician or political body] talk about [issue]” the easy answer is “they don’t care.” Saliency and elite opinion matter. If headlines about an issue won’t draw views or elites can’t be bothered to care, it won’t see the light of day.

But here’s the problem with this narrative: when you get down to it, Section 230 also isn’t particularly cool. Laws that determine who is liable for what online aren’t particularly interesting. Of course, Section 230 is in the news, but I think that’s because it’s been erroneously coupled to the cooler issue of free speech (or at least coupled in a way which misstates the dynamic), about which everyone has an opinion.

Section 230 probably became a buzzword due to the debate surrounding sex trafficking and SESTA/FOSTA, and the momentum has carried over into other issues while sucking the oxygen necessary for a productive debate around copyright. Let’s return to the tweet flagged for copyright infringement, the removal of which Trump blamed on Section 230. Nobody has ever accused the President of being detail-oriented. Still, his being exactly wrong on this issue is the product of the fact that everyone is talking about Section 230 but (virtually) nobody was talking about copyright.

From this angle, the answer for why copyright doesn’t get the attention that Section 230 does is as simple as it is unsatisfying: because Section 230 got more attention.

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All of the above explanations have their shortcomings. This is just an exploratory look at why conservatives have ignored the role copyright plays in current debates surrounding online censorship, which is a fancy way of saying I don’t have an actual conclusion. Even so, there’s some value to be found in examining why certain policies aren’t scrutinized, even if that value is only therapeutic.

Filed Under: censorship, conservatives, copyright, free speech

UK Wing Of TikTok Swears It Isn't Helping The Chinese Government Oppress Uighur Muslims

from the but-would-you-swear-on-this-stack-of-little-red-books? dept

China doesn't have a problem with censorship. By that, I mean the Chinese government sees no problem with its ever-expanding censorship of speech it doesn't like. While China appears to have embraced capitalism, it hasn't embraced the democratic accoutrements that normally accompany a move towards a more free society.

The government doesn't like to be criticized, so it has engaged in several efforts to censor speech by people arguing for less censorship and a better government. These efforts have been greeted with some creative responses by citizens, but the government flips the internet kill switch on and off as needed, denying citizens access to something most people around the world consider to be as essential as tap water.

As if that weren't enough to keep speech in line, American companies and… um… sportsball concerns have cooperated with censorship efforts to appease the Chinese government with the end goal of accessing China's billion-strong user base.

The crackdown on speech is far more pronounced in one region of the country, where the government has targeted certain citizens -- more than one million Uighur Muslims -- with ever-increasing censorship, along with the killings and disappearings China has historically deployed against those on its expansive persona non grata lists.

A number of US companies have helped the Chinese government oppress Uighur Muslims. Unsurprisingly, a Chinese company is doing the same thing. TikTok, the social media upstart that has irrationally angered the Trump administration, has admitted its contribution to the government's persecution of its least favored citizens. This includes efforts made by TikTok's moderation teams located in other countries where one would (very hopefully) assume the Chinese government's demands are free to be ignored. Unfortunately, this doesn't appear to be the case.

At a UK parliamentary committee hearing on Wednesday, Elizabeth Kanter, TikTok's UK director of public policy, was asked by Conservative MP Nusrat Ghani whether the app had quashed content about the Uighur crisis in Xinjiang, where at least 1 million Uighur Muslims and other minorities have been detained in so-called "reeducation camps."

According to TikTok's UK director, it's policy of China-appeasing censorship in other nations is no longer a thing. But the explanation isn't very convincing.

"At that time we took a decision [...] to not allow conflict on the platform, and so there was some incidents where content was not allowed on the platform, specifically with regard to the Uighur situation," she said.

Supposedly, things are better now. All you have to do is trust TikTok's UK rep and your own eyes, I guess.

"If you look at the platform now and search for the term 'Uighur' on the TikTok app, you can find plenty of content about the Uighurs. There's plenty of content that's critical of China."

Sounds good. Or, at least, better. But requests for more detail by the UK government were greeted with vague reassurances that the new, more permissive policy has been in place "for at least over a year," but that as recently as "a couple of years ago," the UK wing of TikTok was still acting as an extension of the Chinese government.

ByteDance, the Chinese company that owns TikTok, has attempted to distance itself from the Chinese government and its censorship for a few years now. It operates a completely different social media service in China, putting a firewall between users located elsewhere and the Great Firewall the Chinese government has erected. But its home base is problematic. It's impossible to please both the Chinese government and its non-Chinese users who expect their content to be exempt from China's censorship efforts. The end result is, far too often, something that errs on the side of the Chinese government's demands.

TikTok isn't the security threat the Trump administration has frequently imagined it to be. (Well, it's no more of a threat to users and their personal info than several American companies…) But it is still a problem for users located outside of China, who expect their interactions to be unmolested by laws they're not obligated to follow.

Filed Under: censorship, china, content moderation, free speech, oppression, uighur, uk
Companies: bytedance, tiktok

While Trump Continues To Complain About 230, It's Copyright Law That Once Again Actually Gets His Content Removed

from the why-is-no-one-looking-at-fixing-copyright? dept

Once again this week, the President decided to attack Section 230 because social media companies decided to highlight that he was posting dangerous misinformation (this time about the relative dangers of COVID-19, which he was downplaying). Yet, for reasons I do not understand, the President never seems to address copyright law, even though that law is what is actually forcing his and his campaign's content to be legally removed from social media.

Over the last few months we've highlighted multiple times that Trump and his campaign have had posts removed from social media due to DMCA 512 takedown notices. And it happened again this week after Twitter removed a tweet from the Trump campaign on copyright grounds.

The tweet in question made use of a video clip showing the San Francisco 49ers wide receiver Brandon Aiyuk scoring a touchdown from last Sunday's 49ers/Eagles game. The clip (somewhat ridiculously) superimposed Trump's head over Aiyuks, and put the well known graphic of the coronavirus on Eagle's defender Marcus Epps (whom Aiyuk leapt over in getting to the end zone). The message of the video (stupidly) is that Trump was somehow able to "avoid" the coronavirus (which, I should remind you, he did not). The video is stupid on multiple levels, including the the sickening and despicable implication that those who died from COVID-19 are somehow just not strong enough.

However, I think there's a pretty strong argument that the video would be protected as fair use -- and that the takedown issued by the copyright holder (likely the NFL) was not a legitimate takedown. In fact, it's possible that the NFL issued the takedown for political reasons, as there's no argument that this somehow harmed the NFL directly. It's a short clip. It's used in a transformative (if stupid) way.

In other words, this is an actual example of the law being used for censorship. Unlike Section 230. And yet, we don't see Trump or his supporters calling for that aspect of copyright law to be fixed. Indeed, copyright law is even worse, because if the Trump campaign keeps getting copyright strikes like this, the law says that Twitter must shut down his account for repeat infringements. Will Trump and his supporters finally see that the real problem for censorship is copyright?

Instead they're asking to take away Section 230, which (at best) would create a situation more like copyright in which the legal incentive is much stronger towards pulling down such content. It remains incredible to me that in all of these discussions about social media and "censorship" everyone is focused on the law that protects speech online, rather than the law that forces websites to pull down legal content.

Filed Under: censorship, content removals, copyright, dmca 512, donald trump, fair use, parody, repeat infringer, section 230, takedowns, trump campaign
Companies: twitter

Nikola's Plan To Combat Its No Good, Very Bad Month Appears To Be Using Copyright To Silence Critics

from the keep-digging dept

PR crisis management is not an easy gig. When a company suffers through a tumultuous period, it is all too easy for a company to try to combat the bad press through all kinds of means that are, in the end, a detriment to the effort. Instead, good PR crisis management follows three chief axioms: don't lie, don't try to downplay the severity of the crisis, don't be afraid to say you screwed up.

Nikola Motor Company is doing a shit job of following this advice. As we detailed recently over the course of a couple of posts, the company is very much in the middle of a PR crises. It began when a hedge fund revealed that Nikoa founder Trevor Milton allegedly flat-out lied to the world about having a working Nikola 1 model in 2016, with the obfuscation going so far as to put out a video of the truck driving down a highway, when the reality was that the truck was rolling down a hill not under its own power. After that public report, Nikola missed the first deadline to have a major partnership deal with General Motors. The stock tanked, massively. Milton suddenly found himself facing two charges of sexual assault, one of them from his own cousin.

If ever there was a time when a company needed to follow good crisis PR protocols, this was it. Instead, the company is apparently quite busy trying to use the DMCA process to silence critics on YouTube.

As noted in a Financial Times report, a number of financial commentator channels on YouTube have reported that they received takedown notices from the hydrogen truck maker, resulting in several videos being removed from the video-sharing platform. In a statement to the publication, Sam Alexander, a Nikola critic and YouTube host, stated that he received notifications on Wednesday that at least four of his videos were reported for copyright infringement. All four of the videos featured sections of the “Nikola One in Motion” ad.

The same was true for fellow content creator Tom Nash, whose finance-themed channel has 41,000 subscribers. According to Nash, he was required to take down three critical Nikola videos including one that featured sections of the rolling Nikola One prototype. Nikola reportedly took issue with Nash’s use of videos that featured its prototype jet ski and hydrogen station as well. “It’s what you would call a death sentence for a creator. This is my livelihood. I have three kids. I quit my job to do this,” Nash told the FT.

Honestly, it's more that this is what you would call a death sentence for the company trying to abuse copyright law to silence critics who's critiques clearly fall under fair Uue. Put another way: if the company had a fallback position other than trying to censor its critics, it would have played to that position. Instead, Nikola is very much opening itself to both liability for bullshit DMCA claims and, more importantly, to even further public criticism as a result of the company trying to bury the public's head in the sand.

Now we're in pure Streisand territory. As a result of the company trying to bury criticism, that criticism is getting even more play and attention than it already had. If this strategy was thought to be a good idea by those in charge of Nikola, then maybe it truly would be best if the company just bad-acted itself into oblivion.

Filed Under: censorship, copyright, criticism, takedowns, trevor milton
Companies: nikola