10 Years Later: SOPA Protests Were A Turning Point, But Not The Beginning Or The End

from the the-fight-continues dept

The SOPA blackouts of 2012 marked an important milestone in the power of online activism to influence policy at the highest levels, but it would be a mistake to view it as either the start or the end of the struggle it represents. It is still among the most strikingly-effective examples to date, but it built on years of policy work that continues to this day.

Online activism is notoriously poorly preserved, and it rarely produces the salient visuals of offline protests. Massive crowds of people taking part in an online action can’t be photographed extending down city blocks; no hand-painted signs with powerful slogans or sea of faces with resolute determination will become the iconic image representing the moment. 

As a result, it’s easier to forget the early Web blackouts of 1996 protesting the passage of the Communications Decency Act, or the Gray Tuesday event of copyright civil disobedience in 2004, to name a few I spoke about the legacy of these three events, taken together, at re:publica 2014).

The SOPA protests provided a counter-example, in part, both because of the memorable visuals of the online “blackouts” and the in-person events coordinated in cities around the country. Images of Aaron Swartz, who had been a key organizer against the bill, addressing crowds at a New York rally illustrated articles about the online protests.

As important as the unprecedented scale of the online actions was the reception by the press, the public, and the political sphere. The SOPA blackout represented a moment of online grassroots activism demanding to be taken seriously, and getting the coverage and reception it deserved. Every major news outlet reported on the protests and, as an indicator of its prominence, each of the candidates vying for the Republican nomination for president were asked onstage about SOPA at a January 19 debate — surely a first for a copyright proposal. Their criticism was ample evidence of the cracks in the bill’s inevitability.

One long-term effect of the SOPA blackouts: it has seemed to meaningfully shift, perhaps permanently, the policy environment around copyright in particular. In 2011 and early 2012, SOPA appeared to be inevitable, in part because earlier industry-favored copyright proposals had both passed with near unanimity and withstood challenges that laid their irrationality bare.

After SOPA’s flame-out, it no longer seems like copyright law is something that can be hammered out by industry representatives behind closed doors (admittedly, this shift has corresponded with the rise of tech companies as lobbying giants with a different copyright agenda than the existing players, which has surely played a role). As just one example: In 2011, SOPA was inevitable, but so was an eventual expansion to the Copyright Term Extension Act, continuing the public domain freeze that had been running since 1998. Of course, that never came to pass, and the public domain has grown on January 1 every year since 2019.

That change wasn’t the result of the “war being won” — far from it. Increasing the costs of pushing through copyright policy has mostly shifted the battlegrounds in two major ways. 

First, big changes to how copyright gets enforced in the United States happen through private agreements with online platforms. YouTube’s ContentID system already existed in 2012, but the importance of that tool and others like it has increased immensely in the years since. The result is a landscape of platforms that do what Professor Annemarie Bridy has called “DMCA-plus enforcement,” extending the effective contours of copyright without a change in the law.

If there is an upside to this arrangement, it has been that actual copyright law discussions have had the heat turned down slightly, and may have become less of a fact-free zone. It’s hard to play out the counterfactual, but I think the right-to-repair movement and the Music Modernization Act have been beneficiaries of this change.

Second, and perhaps more nefariously, copyright proposals that had been proxies for regulating online speech more broadly have migrated to other areas of the law. Most notably in the past decade, these attacks have focused on section 230 of the Communications Decency Act. In some cases, the overlap is almost comical, like when op-eds pushing for changes cite the wrong law, and the New York Times has to issue a correction. In other moments the effect is more depressing. Watching FOSTA/SESTA skate through to passage, despite all the organizing against it, was a low point for online speech.

In my work with journalists today, copyright continues to be a chokepoint for silencing unfavorable reporting, but it is only one arrow in the quiver of would-be censors. We see police officers attempting to limit the distribution of their statements by playing mainstream music in the background, or right-wing activists issuing takedowns for newsworthy photographs documenting their associations, but we also see frivolous SLAPP suits by elected officials, a dramatic rise in arrests and assaults on journalists, and existential legal threats to entire outlets.

The overwhelming majority of people who are passionate about freedom of expression and access to knowledge online aren’t paid to work on those issues. I have been very lucky that, since 2011 I have been able to focus on these important topics as my job, first at the Electronic Frontier Foundation as a copyright activist, and now as the director of advocacy at the Freedom of the Press Foundation. SOPA was among the very first issues I worked on in this field, and I’ve carried its lessons through the decade of activism that I’ve been fortunate enough to participate in.

Parker Higgins is the director of advocacy at the Freedom of the Press Foundation. From 2011 to 2017, he worked on the activism team at the Electronic Frontier Foundation on copyright and speech issues.

This Techdirt Greenhouse special edition is all about the 10 year anniversary of the fight that stopped SOPA. On January 26th at 1pm PT, we'll be hosting a live discussion with Rep. Zoe Lofgren and some open roundtable discussions about the legacy of that fight. Please register to attend.

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Despite RIAA's Claim That YouTube-dl Is Infringing, Journalists Use It All The Time

from the substantial-non-infringing-uses dept

A few weeks ago we had a story about the RIAA getting GitHub to remove YouTube-dl using a bizarre form of copyright takedown. The RIAA claimed that the tool violated rules against circumventing DRM. Over at Freedom of the Press Foundation, Parker Higgins has highlighted how often this tool is used legitimately for journalism purposes, which is important. Under the Betamax standard, tools with substantial non-infringing uses should not run afoul of copyright law. Higgins' writeup is reposted here with permission.

The popular free software project “YouTube-dl” was removed from GitHub following a legal notice from the Recording Industry Association of America claiming it violates U.S. copyright law. According to the RIAA, the tool's “clear purpose” includes reproducing and distributing “music videos and sound recordings... without authorization.”

In fact, YouTube-dl is a powerful general purpose media tool that allows users to make local copies of media from a very broad range of sites. That versatility has secured it a place in the toolkits of many reporters, newsroom developers, and archivists. For now, the code remains available to download through YouTube-dl's own site, but the disruption of its development hub and the RIAA saber-rattling jeopardizes both the future of the software and the myriad journalistic workflows that depend on it.

Numerous reporters told Freedom of the Press Foundation that they rely on YouTube-dl when reporting on extremist or controversial content. &Oslashyvind Bye Skille, a journalist who has used YouTube-dl at the Norwegian Broadcasting Corporation and as a fact checker with Faktisk.no, said, “I have also used it to secure a good quality copy of video content from YouTube, Twitter, etc., in case the content gets taken down when we start reporting on it.” Skille pointed to a specific instance of videos connected to the terrorist murder of a Norwegian woman in Morocco. “Downloading the content does not necessarily mean we will re-publish it, but it is often important to secure it for documentation and further internal investigations.”

Justin Ling, a freelance investigative reporter who often covers security and extremism for outlets including Foreign Policy and VICE News, described the scenario of reporting on the rise of conspiracy theories as the relevant posts face removal and bans. YouTube “has been a crucial hub for QAnon organizing and propaganda: I've often used YouTube-dl to store those videos for my own benefit. Good thing, too, as YouTube often, without warning, mass-removes that sort of content, which can be ruinous for those of us using those YouTube accounts to trace the spread of these conspiracies.”

In other cases, local copies are necessary to conduct more rigorous analysis than is possible online, and journalists turn to YouTube-dl for the highest quality copy of the video available. John Bolger, a software developer and systems administrator who does freelance and data journalism, recounted the experience of reporting an award-winning investigation as the News Editor of the college paper the Hunter Envoy in 2012. In that story, the Envoy used video evidence to contradict official reports denying a police presence at an on-campus Occupy Wall Street protest.

“In order to reach my conclusions about the NYPD’s involvement... I had to watch this video hundreds of times—in slow motion, zoomed in, and looping over critical moments—in order to analyze the video I had to watch and manipulate it in ways that are just not possible” using the web interface. YouTube-dl is one effective method for downloading the video at the maximum possible resolution.

Jake, a member of the Chicago-based transparency group Lucy Parsons Labs, uses YouTube-dl to save copies of recorded incidents involving police use of force or abusive behavior. Once copied, the videos can be stored in an archive or modified before publication, such as by blurring the faces of bystanders or victims. “We have sometimes been able to take a closer look at individual frames after downloading with YouTube-dl to identify officers when they are not wearing their badges intentionally or obfuscating them with things to avoid accountability.”

One misinformation researcher told Freedom of the Press Foundation about using YouTube-dl to create a baseline for machine learning models developed to do automated real-time fact-checking. “While our production systems are designed to be used on live video streams, it's not feasible to test on live video. YouTube-dl allows us to greatly increase the speed of our research development and allow us to be able to actually test our software on a day-to-day basis, not just when politicians happen to have a speech.”

Similarly, a number of reporters described using YouTube-dl for nuts-and-bolts workflows such as transcribing videos they’re covering. Jeremy Gray, a data scientist with The Globe and Mail, described a Slack tool he provides to journalists to allow them to automatically transcribe their own interviews and, until Friday, to transcribe YouTube videos from a URL. “It used YouTube-dl, and now that part is broken.” Another journalist, who works at a “small-ish public media newsroom,” described a common situation where a reporter needs “a recording of a public meeting for a story but is on deadline and doesn’t want the hassle of recording the parts they want it in real time or wants the full file for something like AI transcription.”

That same journalist described how YouTube-dl helps address the challenge of incorporating user-generated content on-air. In the immediate aftermath of an earthquake, their newsroom began expansive continuous coverage and sought to include photos and videos that locals had recorded. “We are scrupulous about making sure we get permission (and the person granting it actually owns the copyright), but especially right after an earthquake asking people to send the video to us specifically can be a much bigger ask than just allowing us to use it (if they even have a recording, which they probably don’t for a livestream), so often after getting permission I’d just download it straight from social media to transcode for TV.”

That use case is common. Reporters frequently need high-fidelity copies of video or audio tracks for publication or reporting. Ling, the freelance security reporter, said he also uses YouTube-dl to “get the best audio quality” when downloading copies of press conferences or news events “to grab snippets of audio for use in podcasts or radio work.”

Finally, numerous reporters described using YouTube-dl to download copies of their own works. Freedom of the Press Foundation has previously worked to help writers preserve portfolio copies of their articles, and to help full news archives stay online when the outlet itself is under threat. YouTube-dl plays an important role in that ecosystem as well.

GitHub has not publicly commented on its removal of one of its most popular repositories. Clearly, YouTube-dl in particular and the ability to download and manipulate online videos in general are an important part of the work of journalism and contemporary media literacy. Given the important role that YouTube-dl plays in public interest reporting and archiving, the RIAA’s efforts to have the tool removed represent an extraordinary overreach with the possibility for dramatic unforeseen consequences. We urge RIAA to reconsider its threat, and GitHub to reinstate the account in full.

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Brave Whistleblowers Are Being Punished For Saving Lives During A Pandemic

from the whistleblowing-saves-lives dept

The coronavirus crisis has highlighted the importance of whistleblowers to a free and unfettered press. Throughout this emergency, it has been whistleblowers playing a critical role in informing the general public and forcing governments to make important public health decisions. And it has been whistleblowers that have pierced the will of governments around the world who have tried to downplay the significance of the threat facing their citizens.

In China, where the virus is believed to have originated, the government's "fail-safe" system for spotting contagious outbreaks failed to pick up the new illness, reportedly because local officials withheld information for political reasons. Instead, central health authorities learned about the outbreak when whistleblowers leaked internal local government documents.

These documents emerged alongside observations from Dr. Li Wenliang, widely known as "the whistleblower doctor," who warned colleagues about new patterns of illness in WhatsApp messages now credited with raising the alarm about the new virus. He was detained and forced to confess to spreading false rumors in January, and was subsequently diagnosed with COVID-19, leading to his death in February. The Chinese government faced massive online backlash for its handling of the Li case, and has subsequently attempted to reclaim him as a national hero.

In the United States, where the official response has been fractured and at times incoherent, whistleblowers have played a key role in escalating issues within the government and to the press.

It was reported in February that U.S. health workers were given neither special training nor protective gear when handling Americans who were in quarantine on Air Force bases after being evacuated from coronavirus hot zones. The information underlying that reporting came from a whistleblower report shared with Congress and obtained by media outlets.

That person's identity is not publicly known, and members of Congress have reported that she has been subjected to professional retaliation.

In the Navy, leadership was not taking adequate steps to protect its sailors from contracting and spreading coronavirus, according to a letter sent from aircraft carrier captain Brett Crozier to his superiors. The letter described conditions on the U.S.S. Roosevelt, which Crozier led, as it was ravaged by coronavirus. It was sent to multiple recipients through unclassified channels, which Navy officials said could encourage it to be leaked — as it ultimately was, to the San Francisco Chronicle.

Although the Navy has not publicly named a suspect for that leak, it fired Captain Crozier for his role in its release. (Crozier later tested positive for coronavirus as well.) The Acting Secretary of the Navy, Thomas Modly, flew to Guam to address the crew of that ship in a profanity-laden tirade that included a warning not to consider acts of whistleblowing in the public interest. In particular, Modly's address included the lines:

There is no, no situation where you go to the media. Because the media has an agenda and the agenda that they have depends on which side of the political aisle they sit and I'm sorry that's the way the country is now, but it's the truth and they use it to divide us and use it to embarrass the Navy.

His admonition against leaking was apparently ineffective, as audio and transcripts from his speech were released to multiple outlets immediately. Modly initially defended his remarks, but has since stepped down from his post.

Some of the most shocking stories about the disarray in the U.S. response to the coronavirus outbreak have concerned the shortages of personal protective equipment, or PPE, used every day in medical settings. The reasons for the shortages are varied — ranging from an insufficient national stockpile to the absence of a strategy for coordinating supplies between states — but reporting on the shortages has likely made a significant difference in spurring action to remedy those problems.

Some hospital administrators, however, have been openly hostile in their response to that reporting. In fact, at many hospitals around the country, doctors and nurses have been told that they could be fired for speaking with the media about the lack of PPE available to them. As the New York Times reported, in “the epicenter of the crisis in the United States, every major private hospital system has sent memos in recent weeks ordering workers not to speak with the media, as have some public hospitals.” Several nurses and doctors in the U.S. have already been suspended or fired for posting on Facebook about PPE shortages, protesting the shortages, or talking to the media about them.

These examples show courageous individuals going out of their way to correct the wrongs they've observed. In many cases, these are people who are already putting their life on the line for public health, taking extra steps to fight for the truth. That impulse should be rewarded, and at times governments have pursued that ideal, through legislative efforts to protect whistleblowers, or even reward them for their service.

Unfortunately, at the highest levels of the U.S. government, the impulse to root out corruption and inform the people has instead been punished at every turn. Most recently, this can be seen in the Trump administration's decision to fire the intelligence community inspector general responsible for fielding the whistleblower complaint that led to President Trump's impeachment last year.

Under any circumstances, that willingness to engage in political retribution and retaliation against a whistleblower would be cause for concern. But during a global pandemic, where a clear view of the facts as they are is of paramount concern, it may truly be a question of life and death.

Republished from the Freedom of the Press Foundation blog.

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More Copyright Policy Should Be As Boring As This Supreme Court Decision

from the make-copyright-boring-again dept

The Supreme Court ruled unanimously last Monday in Fourth Estate v. Wall-Street.com, a copyright case that hinged on whether the "registration" of a work—which, by statute, must precede most kinds of infringement lawsuits—happens when the author sends in their application, or whether it happens when the Copyright Office makes a determination and sends back a certificate. There was a circuit split on the issue, in which some courts had gone with the "application approach," and others had gone with the "registration approach," and legal experts were divided on the question.

As of last Monday it is resolved. The Supreme Court went with the "registration approach" and said that unless you're subject to one of the handful of statutory carve-outs you must wait until the Copyright Office does its thing before you can sue.

The Supreme Court decided correctly, for what it's worth -- as Mike wrote about earlier. But, as even a dedicated copyright nerd like your humble author must admit, it's a pretty boring question. Copyright law is a field where small changes can have profound effects on people's lives, where de facto speech policies can be shaped, and where new technologies and media can be formally blessed or condemned to utter oblivion. But it's also a field of industrial regulation, cobbled together in large part by technocrats with domain expertise figuring out what works for all the parties in the room. To its credit, Fourth Estate is a case that limits its impact largely to that latter area.

But the fact that one body of law must do both things is the source of a lot of headache and heartache. Writing effective policy is hard, even when you're not trying to write a single rule that governs both billion dollar studio contracts and comments on a blog. The consequences can be extreme, as Cory Doctorow once explained: "A funny thing happened on the way to the 21st century: copyright policy ceased to exist. Because every copyright policy that we make has a seismic effect on the Internet, and because you can’t regulate copying without regulating the Internet." And of course, "as we make the transition from a world where everything we do includes an online component to a world where everything we do requires an online component, it’s becoming the case that there’s no such thing as 'Internet policy' – there’s just policy."

But it's neither inevitable nor accidental that copyright touches every part of our lives. It's helpful to really break it down here: copyright is an enumerated bundle of restrictions that apply to things called "works."

Doctorow's argument is about the first half of that expression. He elaborated in another column: because everything we do with computers (and especially networked computers) involves observable acts of making copies, copyright touches nearly every use of a work. Uses that once went unregulated are now swept up in the bundle of rights because they involve a copy. There are big commercial examples of this, like how video rental used to be an act of moving a cartridge or a disc from place to place and now it's a licensed act of making copies. But there are also a million little examples of this we encounter every day, from checking out books at the library to sharing a funny picture with friends to listening to our favorite music.

So that's how the first half of the expression went awry; what was once a limited set of exclusive rights is now a mechanism to regulate all sorts of uses of things called "works." That would be bad enough. But the real problem lies in the second half, in terms of what gets called a "work."

That too used to be an enumerated list. The first U.S. copyright law covered maps, charts, and books. Over the years more and more categories were added, but the real shift was more fundamental. It happened, at least in the U.S., in 1976, when the overhauled law changed copyright from a system that was opt-in to one where participation was mandatory. Works were previously only subject to copyright restrictions if the author went through "formalities,"—namely, putting a copyright notice on the work and sending in a registration to the Copyright Office. The 1976 Act removed that hurdle. Overnight, that changed the character of copyright from a regulatory system that applied to a handful of professionals consciously participating in it, to one that controlled nearly every utterance and scribble that got fixed in a tangible medium.

That's the one-two punch. First, through law: applying copyright coverage to basically everything. Then, through technology: expanding the regulated uses to basically all of them.

It's a bad situation, and it's that part that motivates people like Doctorow to take pursue a life of activism. With few exceptions, most people passionate about copyright reform care most about the consequences of copyright as an everything policy, and less so about the nitty-gritty of copyright as industrial regulation.

Which is part of the reason why, to bring it back to Fourth Estate v. Wall-Street.com, the Supreme Court decision is both correct and (mostly) boring. Correct, in part, because actual litigation is something that does not and should not apply to most human beings interacting with copyrighted works, and so it's good for that to be conditioned on opt-in registration. Boring, in part, because it is (mostly) not about the side of copyright that affects blog comments, but instead the side that underpins billion dollar contracts.

Copyright policy has, for decades now, labored under the fiction that there’s no distinction between the boring parts and the scary parts of the law. It’s a good thing to remember there’s a difference.

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