Copyright Industry Lobbyists Can't Even Get Their Story Straight On Article 13: Does It Expand Copyright Or Keep It The Same?

from the get-your-act-together dept

Last week, we pointed out that while you might hear copyright industry lobbyists and EU regulators repeatedly insisting that all of the concerns being raised about the EU Copyright Directive are being driven by "big tech" lobbying, the actual data shows that over 80% of the lobbying effort has come from legacy copyright industries, pushing really, really hard for a massive expansion in copyright law that will fundamentally change how the internet works (and not in a good way). It's become clear, watching these lobbyists in action, that they will say absolutely anything, no matter how ridiculous, if they think it will lead to getting their beloved Article 13, where the sole purpose is to fundamentally change the internet from a communications medium, in which anyone can share anything they create, to a fully broadcast medium, where everything must first be licensed. Obviously, the legacy copyright companies want this badly, because they're in the business of licensing. And, if everyone suddenly needs to get licenses, suddenly they become relevant again.

But, as we mentioned last week, those same lobbyists are freaking out that EU regulators might possibly add a "safe harbor" to Article 13. Even with a safe harbor, Article 13 is a problem, but without a safe harbor it's a disaster. The "safe harbor" would just mean that if internet companies follow specific steps to rid their platforms of infringing works, then they can't get sued. But the copyright players badly want to be able to sue, because that's how they rid the internet of this amateur competition -- by making it too costly to continue to host.

But in one of the letters sent last week, by the movie and sports industries, they made an odd argument against the safe harbor. Hilariously, they claim that a safe harbor would change copyright law, and the purpose of Article 13 is to codify existing case law. Really:

The initial goal of Article 13 was to codify the existing case-law in a way that would enable right holders to better control the exploitation of their content vis a vis certain OCSSPs which currently wrongfully claim they benefit from the liability privilege of Article 14 ECD. Unfortunately, the Value Gap provision has mutated in such a way that it now creates a new liability privilege for big platforms and therefore even further strengthens the role of OCSSPs to the direct detriment of rightholders.

First of all, this is a completely laughable attempt to rewrite history. The E-Commerce Directive's Article 14 contains safe harbors that have always been held to apply to internet service providers. But, still, it's odd to see them claiming that Article 13 isn't supposed to do anything new.

Apparently, however, this new message didn't make it to all the lobbyists working on this thing (either that, or they just don't care one bit if they give conflicting messages, as long as they get what they want). Neil Turkewitz, a former RIAA VP, who was a huge part of the RIAA push to dismantle the internet bit by bit over the past few decades, has written up some crazy rant about Article 13, where he makes exactly the opposite argument that his buddies in the film and TV industries were making. Rather than merely codifying existing law, Turkewitz wants you to know that Article 13 is a wonderful new idea:

Articles 11 and 13 are designed to create markets where none presently exist, or are marred by unfair competition — to breathe life into property interests that are themselves protected under international law.

This is obviously crazy as well and has no basis in reality. There is no "unfair competition." What Neil and his buddies consider "unfair competition" is any competition in which the deck isn't stacked in massive favor for the record labels. Anything that allows an open internet, where there is competition and artists can (*gasp*) go direct to the audiences they want, and explore new business models, is an abomination that must be destroyed. And the best way is to call it "unfair competition."

Still, these two arguments can't go together. Is Article 13 codifying existing law, as the MPA says? Or is it creating new markets where none presently exist, as per the ex(?) RIAA guy?

Once again, these guys are showing why you can't trust a single word that they say. They will say absolutely anything to get their way and fundamentally take away the open internet.

On a separate note, Turkewitz's laughable article gets more laughable the more you read. I particularly enjoy this part:

But regardless on one’s views of existing safe harbors, one thing is clear — Congress and the Administration should refrain from locking in what is essentially the beta version of internet governance — rules adopted at the dawn of the commercial internet.

If you know anything about the past three decades that Turkewitz spent at the RIAA, one of his focuses was doing exactly what he's now complaining should not be done. He was a key player in pushing the worst aspects of copyright law into every international trade agreement, locking in bad ideas such that they couldn't be changed -- in particular the anti-circumvention provisions of the DMCA. For him to now whine about an attempt to use the same mechanisms to include the "protective" elements for user-rights and free speech in the form of the safe harbors of the DMCA is particularly bold. It's amazing anyone takes him seriously.

Filed Under: article 13, copyright, intermediary liability, intermediary liability protections, neil turkewitz, safe harbors

Pam Geller Sues The US Gov't Because Facebook Blocked Her Page; Says CDA 230 Violates First Amendment

from the a-real-lawyer-filed-this? dept

Well known anti-Muslim troll Pamela Geller has teamed up with a group called the American Freedom Law Center to file one of the dumbest lawsuits we've ever seen. There's so much wrong here it's difficult to know where to start. Here's the lawsuit itself, which is filed against US Attorney General Loretta Lynch, even though Geller's own story about the lawsuit falsely claims she's suing Facebook. She's not. She's suing the US government because Facebook relies on Section 230 of the CDA in taking down some of her pages, and she claims, ridiculously, that Section 230 of the Communications Decency Act violates the First Amendment. The lawsuit is wrong on so many levels it's not even funny. Let's start with this, though -- Geller has long positioned herself as an extreme supporter of the First Amendment. And yet, she's now suing the government over CDA 230, a law which has probably done more than any other to guarantee that the First Amendment works on the internet.

The lawsuit talks up the vast open and public forums of the internet, which is accurate, but then argues that because there's so much content online, Section 230 no longer applies.

Unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a “scarce” expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds.

And then it gets to the crux of her argument: that popular internet forums are so important, no one should ever be barred from using them:

Denying a person or organization access to these important social media forums based on the content and viewpoint of the person’s or organization’s speech on matters of public concern is an effective way of silencing or censoring speech and depriving the person or organization of political influence and business opportunities.

Due to the importance of social media to political, social, and commercial exchanges, the censorship at issue in this Complaint is an unmatched form of censorship.

Consequently, there is no basis for qualifying the level of First Amendment scrutiny that should be applied in this case.

Except, this is really, really confused. Section 230 does not enable censorship. A private company is free to deny service or moderate its own services as much as it wants. That's their right as a private company. This is not a Section 230 issue at all. Geller and her lawyers are hellishly confused. Yes, Section 230's (c)(2) includes a so-called good-samaritan clause that basically says that a site does not take on new liability for taking down content, but that's separate from the issue of deciding to moderate content at all. Facebook can take down your page whenever it wants and it's not a First Amendment issue because Facebook isn't the government. And Section 230 has nothing to do with this at all, other than actually encouraging Facebook to leave up more speech since it's not considered liable for its users' speech.

But Geller's lawyers don't seem to understand the law they're whining about.

Section 230 permits content- and viewpoint-based censorship of speech. By its own terms, § 230 permits Facebook, Twitter, and YouTube “to restrict access to or availability of material that [they] consider[] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

Except that's not what Section 230 does at all. Companies are already permitted to do that because they're private companies. All Section 230 says is that in removing content, that doesn't mean those companies suddenly have liability for other content that they left up. Geller and her lawyers simply don't understand what Section 230 does and says. And yet they're suing over it.

Section 230 confers broad powers of censorship, in the form of a “heckler’s veto,” upon Facebook, Twitter, and YouTube censors, who can censor constitutionally protected speech and engage in discriminatory business practices with impunity by virtue of this power conferred by the federal government.

Except it does no such thing. Actually, Section 230 frequently protects against the heckler's veto because it makes it clear that platforms don't have to do anything and they're still protected from liability. This is actually a stronger protection against a heckler's veto than basically every other country in the world, most of which have a DMCA-like "notice and takedown" system, which does lead to protected speech being deleted. Section 230 protects against that, and a very confused Geller and her lawyers get this backwards.

Section 230 is not tied to a specific category of speech that is generally proscribable (i.e., obscenity), nor does it provide any type of objective standard whatsoever. The statute does permit the restriction of obscenity, but it also permits censorship of speech that is “otherwise objectionable, whether or not such material is constitutionally protected.” 47 U.S.C. § 230(c)(2)(A). Further, the subjective “good faith” of the censor does not remedy the vagueness issue, it worsens it.

This is just further confusion. The lawsuit is arguing over an issue as if this is about the government censoring speech, rather than private companies moderating speech -- something they've always been able to do, and which itself is protected by the First Amendment.

This lawsuit is the legal equivalent of that idiot who claims that any company moderating content is violating the First Amendment. And to that, I've got an obligatory xkcd for you: From there, she goes on to complain about Facebook, Twitter and YouTube all taking down some of her content for terms of service violations, and insisting that Section 230 is to blame (it's not) and that her free speech rights have been denied (they have not).

Section 230 of the CDA, facially and as applied, is a content- and viewpoint based restriction on speech in violation of the First Amendment.

Section 230 of the CDA, facially and as applied, is vague and overbroad and lacks any objective criteria for suppressing speech in violation of the First Amendment.

Section 230 of the CDA, facially and as applied, permits Facebook, Twitter, and YouTube to engage in government-sanctioned discrimination and censorship of free speech in violation of the First Amendment.

None of that is a remotely accurate description of Section 230. Not even close. Geller's blog post, which falsely claims she's suing Facebook, rather than the US government, then just is a long extended whine about the fact that Facebook takes down her content when she violates its terms. Now, we've been vocal critics of Facebook's willingness to silence content and it's almost arbitrary decision-making in determining what content is appropriate for Facebook and what is not, but we'd never suggest that Facebook doesn't have a legal right to make those decisions. To make a bizarre First Amendment argument here, trying to link Facebook to the government via the free speech protections of Section 230, is nonsensical. It's almost as if her lawyers didn't even realize the argument they're really trying to make (which would also be a non-starter), that Facebook, Twitter and YouTube are de facto public spaces, and thus went with the even more bat-shit crazy misinterpretation of Section 230.

As for her lawyers at the American Freedom Law Center (AFLC) they're just as confused in a blog post about the lawsuit:

Section 230 provides immunity from lawsuits to Facebook, Twitter, and YouTube, thereby permitting these social media giants to engage in government-sanctioned censorship and discriminatory business practices free from legal challenge.

It's not government sanctioned censorship. And the immunity it provides is just that these platforms don't lose their own protections against liability on the content they leave up just because they choose to take down some other content. Section 230 infers no special benefits to platforms to take down content. It just says that taking down content won't lose them other protections -- protections, I should remind you -- that help promote and protect free expression online.

While there have been some questionable CDA 230 rulings lately, this one is an easy one. It should be laughed out of court pretty quickly on the basis of "did you even read the law you're suing over?"

Filed Under: first amendment, free speech, intermediary liability protections, loretta lynch, pam geller, section 230
Companies: facebook, google, twitter, youtube