Mind Manipulation? No, Censorship By Copyright Is The REAL Threat To Elections

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Charles J. Glasser, Jr., Esq. Professor, Media Ethics and Law, NYU
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Last week’s news cycle was dominated by allegations and speculation regarding the “manipulation” of voter’s minds through shady data collection by both Cambridge Analytica (allegedly supporting Trump) and by Facebook and Google (allegedly supporting Secretary Clinton and previously President Obama). Just like the “fake news” phenomenon, the impact on elections is easy to imagine but almost impossible to prove.

Tech giants have reacted to the hue and cry about manipulation by issuing conflicting statements and proposals. Facebook’s Mark Zuckerberg and Apple’s Tim Cook have gone as far as suggesting that some new regulations may be needed. Given their track records, Facebook and Google will invariably screw it up. Every attempt to filter or verify “fake news” has been botched: from hiring millennial social justice warrior “news curators” with no journalism experience, to relying upon slanderous, irresponsible outfits such as the Southern Poverty Law Center as arbiters of truth, we can be sure that the tech giants responsible for distribution of information will be unable to solve an admittedly complex problem.

I have serious doubts about the veracity about “mind control” conspiracies favored by the progressive left that assumes Americans are not autonomous actors or are in fact stupid, gullible hicks who simply can’t be trusted to think for themselves. But there is an ongoing problem that I predict will reappear in the upcoming midterm elections.

Specifically, candidates, political parties and their operatives – with the support of news organizations – have been abusing copyright law not to “manipulate” voter’s thoughts, but much more dangerously deny them the opportunity to hear candidates in their own words at all. Censorship by copyright abuse may be the greatest threat yet to an “informed” electorate. In short, we should be less concerned with attempts to tell you what to think than your ability to hear candidates’ own words to make up your own mind.

The Digital Millennium Copyright Act: Weaponizing a good law

Signed into law in 1998, the Digital Millennium Copyright Act (DMCA) has a pretty good purpose at its core. In short, it allows writers, artists, filmmakers and other content creators to file a simple demand for removal to an Internet Service Provider who hosts copies of infringing works. Federal law says that while these outfits cannot be held liable for hosting infringing works uploaded by a third-party, this immunity disappears if the ISP does not quickly remove the infringing work once they get a DMCA letter. (The law also has a “counter-notice” provision that allows the alleged infringer to argue that they have the right to use the excerpt, and if the creator wants to remove the work permanently, they are required to hash it out in federal court).

This law aligns with the motive force behind Thomas Jefferson’s authorship of the original American copyright laws: “to promote the progress of science and useful arts” we create a carrot and stick scheme where artists are encouraged to produce new work (good for society) and are rewarded with a limited monopoly to reap the fruits of that labor (good for creators).

From a free press perspective, the most important limitation on that monopoly is called “Fair Use”, whereby people are allowed to use excerpts of copyrighted work for the purposes of education, journalism and commentary (including parody and satire). The Fair Use doctrine is not only embedded in the statute itself, but has been consistently upheld by the Supreme Court as an important element in free speech rights. Elliot Harmon of the Electronic Frontier Foundation (EFF) put it succinctly: “without fair use protections, people and companies in the public eye could use copyright law to ban coverage that’s critical of them.”

Here comes the perverted part: Political operatives and in some cases news organizations themselves have ignored the Fair Use doctrine and improperly use the DMCA to remove from the internet their opponents’ political advertising or commentary containing excerpts of press conferences, debates and interviews made by the complaining party. Unlike a DMCA complaint from a musician or writer who stands to lose revenue from the distribution of infringing works, the DMCA has become a political weapon designed to completely shut down and hide from the electorate actual words spoken by political candidates. That’s not copyright protection, that’s censorship.

Copyright abuse as a political tool

The Center for Democracy and Technology (CDT) details some of the examples of DMCA abuse in politics. In one anecdote, the 2008 McCain campaign used a short clip of CBS News anchor Katie Couric in a 2008 ad based on Barack Obama’s “lipstick on a pig” comment. The ad, criticizing Obama for his remark on the campaign trail, concluded with an approximately seven-second clip of previous comments by the perky-but-serious Couric about sexism faced by then-Senator Hillary Clinton’s campaign. CBS — no fan of Senator McCain’s — filed a DMCA and forced YouTube to delete McCain’s videos containing the seven second clip. CBS’s basis for filing a takedown was that they objected to the “use of CBS personnel in political advertising.” Putting aside any discussion of CBS’ bias against McCain, the protection of CBS’s “image” is not a valid basis for a DMCA.

The clip was entirely within the exemption of the Fair Use doctrine. CBS is not the only news organization using the DMCA to protect its alleged “reputation” for neutrality: Fox News also filed a DMCA to delete from YouTube a McCain advertisement containing a seven second audio clip of the voice of Fox News correspondent Major Garrett from a Special Report broadcast in which Garrett noted Obama’s refusal to take a stance on the bailout of insurance giant AIG. The CDT report also highlights DMCA abuse by the Christian Broadcasting Network, who demanded removal of a short clip of then Pres. Obama used in a McCain ad. The CDT points out that the cable news broadcast involved footage of a president making public remarks, not a news correspondent or an anchor. This gives the lie to networks’ claim that DMCA’s are being filed to protect the news organizations’ “reputational” interests.

Reputational interests are simply not within the scope of copyright law. It’s a cheap excuse for censorship.

A pox on both your houses

The dirty business of DMCA abuse is a bipartisan activity. Copyright and media lawyer Ben Sheffner runs the “Copyrights and Campaigns” blog which details instances of DMCA abuse from both sides of the aisle. In 2009, Fox-owned WFLD-TV, using YouTube’s “three-strikes and you’re out rule” silenced left-wing “Progress Illinoisentire channel from YouTube, claiming that a clip of their interview with President-Elect Obama’s adviser David Axelrod violated their copyright interests. Similarly, “Brave New Films” — a far left outfit that raised $2,020,866 in donations from George Soros, Barbra Streisand’s charitable foundation and others — was forced to go to federal court to decide the merits of using clips of archconservative Michael Savage, after Savage’s distribution company filed a DMCA to take down clips featuring Savage, used to criticize and challenge his political positions. After close to 98 judicial filings, the parties finally settled.

Proving my pet theory that hypocrisy is a job requirement for any politician, Arizona’s Craig Brittain is running as a Republican to replace Senator Jeff Flake in that states August primaries. He has often used baseless DMCA notices to try and have unflattering interviews of him removed from YouTube. The best part is that before he felt qualified to sit in that distinguished chair, he was clobbered by the Federal Trade Commission for…wait for it, wait for it…operating a “revenge porn website” scheme called “IsAnybodyDown?” That site allowed people to upload nude photographs of others (without permission) and encouraged that personal information be uploaded as well. The very same website also advertised content removal services under the name “Takedown Hammer” and “Takedown Lawyer” that would delete consumers’ images and content from the site in exchange for a payment of $200 to $500. The man behind both websites? The same Craig Britain, who has been filing bogus DMCA’s to protect his “privacy.” (I’m quite sure the fact that the interviews that allowed voters to hear his own embarrassing words is purely coincidental).

Much more than yard signs

We’ve all heard or seen stories about people stealing yard signs for political opponents in the middle of the night. Although juvenile and illegal, that activity doesn’t deprive voters of any information. Similarly, but a bit more complicated, for all the pearl-clutching about “scandalous” data mining, I don’t care if a candidate knows that I collect Jaguar cars, use All-Clad pans, read one columnist more frequently than another columnist or hold one set of political beliefs over another. I don’t care if that data is used to create spurious custom-made stories (“fake news”) to try and persuade me of something. The panic about data-mining is driven largely by the paternalistic, if not authoritarian view that “only the right people” should determine what is read and heard, because after all, those “bitter clingers” are too stupid to have a voice.

I can read something and make up my own mind. But DMCA abuse is more insidious: It prevents voters from hearing candidates embarrass themselves or tell outright lies in their own words. That’s worse than attempted manipulation: that’s censorship.

Charles Glasser was a journalist in the 1980s and later studied at New York University School of Law. After several years as a First Amendment litigator, he became Bloomberg News’ first global media counsel. He is the author of “The International Libel and Privacy Handbook”, teaches media ethics and law at New York University and also lectures globally and writes frequently about media and free speech issues for Instapundit and other outlets.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.