Copyright takedowns are a cautionary tale that few are heeding
On July 14, I'm giving the closing keynote for the fifteenth HACKERS ON PLANET EARTH, in QUEENS, NY. Happy Bastille Day! On July 20, I'm appearing in CHICAGO at Exile in Bookville.
We're living through one of those moments when millions of people become suddenly and overwhelmingly interested in fair use, one of the subtlest and worst-understood aspects of copyright law. It's not a subject you can master by skimming a Wikipedia article!
I've been talking about fair use with laypeople for more than 20 years. I've met so many people who possess the unshakable, serene confidence of the truly wrong, like the people who think fair use means you can take x words from a book, or y seconds from a song and it will always be fair, while anything more will never be.
Or the people who think that if you violate any of the four factors, your use can't be fair – or the people who think that if you fail all of the four factors, you must be infringing (people, the Supreme Court is calling and they want to tell you about the Betamax!).
You might think that you can never quote a song lyric in a book without infringing copyright, or that you must clear every musical sample. You might be rock solid certain that scraping the web to train an AI is infringing. If you hold those beliefs, you do not understand the "fact intensive" nature of fair use.
But you can learn! It's actually a really cool and interesting and gnarly subject, and it's a favorite of copyright scholars, who have really fascinating disagreements and discussions about the subject. These discussions often key off of the controversies of the moment, but inevitably they implicate earlier fights about everything from the piano roll to 2 Live Crew to antiracist retellings of Gone With the Wind.
One of the most interesting discussions of fair use you can ask for took place in 2019, when the NYU Engelberg Center on Innovation Law & Policy held a symposium called "Proving IP." One of the panels featured dueling musicologists debating the merits of the Blurred Lines case. That case marked a turning point in music copyright, with the Marvin Gaye estate successfully suing Robin Thicke and Pharrell Williams for copying the "vibe" of Gaye's "Got to Give it Up."
Naturally, this discussion featured clips from both songs as the experts – joined by some of America's top copyright scholars – delved into the legal reasoning and future consequences of the case. It would be literally impossible to discuss this case without those clips.
And that's where the problems start: as soon as the symposium was uploaded to Youtube, it was flagged and removed by Content ID, Google's $100,000,000 copyright enforcement system. This initial takedown was fully automated, which is how Content ID works: rightsholders upload audio to claim it, and then Content ID removes other videos where that audio appears (rightsholders can also specify that videos with matching clips be demonetized, or that the ad revenue from those videos be diverted to the rightsholders).
But Content ID has a safety valve: an uploader whose video has been incorrectly flagged can challenge the takedown. The case is then punted to the rightsholder, who has to manually renew or drop their claim. In the case of this symposium, the rightsholder was Universal Music Group, the largest record company in the world. UMG's personnel reviewed the video and did not drop the claim.
99.99% of the time, that's where the story would end, for many reasons. First of all, most people don't understand fair use well enough to contest the judgment of a cosmically vast, unimaginably rich monopolist who wants to censor their video. Just as importantly, though, is that Content ID is a Byzantine system that is nearly as complex as fair use, but it's an entirely private affair, created and adjudicated by another galactic-scale monopolist (Google).
Google's copyright enforcement system is a cod-legal regime with all the downsides of the law, and a few wrinkles of its own (for example, it's a system without lawyers – just corporate experts doing battle with laypeople). And a single mis-step can result in your video being deleted or your account being permanently deleted, along with every video you've ever posted. For people who make their living on audiovisual content, losing your Youtube account is an extinction-level event:
So for the average Youtuber, Content ID is a kind of Kafka-as-a-Service system that is always avoided and never investigated. But the Engelbert Center isn't your average Youtuber: they boast some of the country's top copyright experts, specializing in exactly the questions Youtube's Content ID is supposed to be adjudicating.
So naturally, they challenged the takedown – only to have UMG double down. This is par for the course with UMG: they are infamous for refusing to consider fair use in takedown requests. Their stance is so unreasonable that a court actually found them guilty of violating the DMCA's provision against fraudulent takedowns:
https://www.eff.org/cases/lenz-v-universal
But the DMCA's takedown system is part of the real law, while Content ID is a fake law, created and overseen by a tech monopolist, not a court. So the fate of the Blurred Lines discussion turned on the Engelberg Center's ability to navigate both the law and the n-dimensional topology of Content ID's takedown flowchart.
It took more than a year, but eventually, Engelberg prevailed.
Until they didn't.
If Content ID was a person, it would be baby, specifically, a baby under 18 months old – that is, before the development of "object permanence." Until our 18th month (or so), we lack the ability to reason about things we can't see – this the period when small babies find peek-a-boo amazing. Object permanence is the ability to understand things that aren't in your immediate field of vision.
Content ID has no object permanence. Despite the fact that the Engelberg Blurred Lines panel was the most involved fair use question the system was ever called upon to parse, it managed to repeatedly forget that it had decided that the panel could stay up. Over and over since that initial determination, Content ID has taken down the video of the panel, forcing Engelberg to go through the whole process again.
But that's just for starters, because Youtube isn't the only place where a copyright enforcement bot is making billions of unsupervised, unaccountable decisions about what audiovisual material you're allowed to access.
Spotify is yet another monopolist, with a justifiable reputation for being extremely hostile to artists' interests, thanks in large part to the role that UMG and the other major record labels played in designing its business rules:
Spotify has spent hundreds of millions of dollars trying to capture the podcasting market, in the hopes of converting one of the last truly open digital publishing systems into a product under its control:
Thankfully, that campaign has failed – but millions of people have (unwisely) ditched their open podcatchers in favor of Spotify's pre-enshittified app, so everyone with a podcast now must target Spotify for distribution if they hope to reach those captive users.
Guess who has a podcast? The Engelberg Center.
Naturally, Engelberg's podcast includes the audio of that Blurred Lines panel, and that audio includes samples from both "Blurred Lines" and "Got To Give It Up."
So – naturally – UMG keeps taking down the podcast.
Spotify has its own answer to Content ID, and incredibly, it's even worse and harder to navigate than Google's pretend legal system. As Engelberg describes in its latest post, UMG and Spotify have colluded to ensure that this now-classic discussion of fair use will never be able to take advantage of fair use itself:
Remember, this is the best case scenario for arguing about fair use with a monopolist like UMG, Google, or Spotify. As Engelberg puts it:
The Engelberg Center had an extraordinarily high level of interest in pursuing this issue, and legal confidence in our position that would have cost an average podcaster tens of thousands of dollars to develop. That cannot be what is required to challenge the removal of a podcast episode.
Automated takedown systems are the tech industry's answer to the "notice-and-takedown" system that was invented to broker a peace between copyright law and the internet, starting with the US's 1998 Digital Millennium Copyright Act. The DMCA implements (and exceeds) a pair of 1996 UN treaties, the WIPO Copyright Treaty and the Performances and Phonograms Treaty, and most countries in the world have some version of notice-and-takedown.
Big corporate rightsholders claim that notice-and-takedown is a gift to the tech sector, one that allows tech companies to get away with copyright infringement. They want a "strict liability" regime, where any platform that allows a user to post something infringing is liable for that infringement, to the tune of $150,000 in statutory damages.
Of course, there's no way for a platform to know a priori whether something a user posts infringes on someone's copyright. There is no registry of everything that is copyrighted, and of course, fair use means that there are lots of ways to legally reproduce someone's work without their permission (or even when they object). Even if every person who ever has trained or ever will train as a copyright lawyer worked 24/7 for just one online platform to evaluate every tweet, video, audio clip and image for copyright infringement, they wouldn't be able to touch even 1% of what gets posted to that platform.
The "compromise" that the entertainment industry wants is automated takedown – a system like Content ID, where rightsholders register their copyrights and platforms block anything that matches the registry. This "filternet" proposal became law in the EU in 2019 with Article 17 of the Digital Single Market Directive:
This was the most controversial directive in EU history, and – as experts warned at the time – there is no way to implement it without violating the GDPR, Europe's privacy law, so now it's stuck in limbo:
As critics pointed out during the EU debate, there are so many problems with filternets. For one thing, these copyright filters are very expensive: remember that Google has spent $100m on Content ID alone, and that only does a fraction of what filternet advocates demand. Building the filternet would cost so much that only the biggest tech monopolists could afford it, which is to say, filternets are a legal requirement to keep the tech monopolists in business and prevent smaller, better platforms from ever coming into existence.
Filternets are also incapable of telling the difference between similar files. This is especially problematic for classical musicians, who routinely find their work blocked or demonetized by Sony Music, which claims performances of all the most important classical music compositions:
Content ID can't tell the difference between your performance of "The Goldberg Variations" and Glenn Gould's. For classical musicians, the best case scenario is to have their online wages stolen by Sony, who fraudulently claim copyright to their recordings. The worst case scenario is that their video is blocked, their channel deleted, and their names blacklisted from ever opening another account on one of the monopoly platforms.
But when it comes to free expression, the role that notice-and-takedown and filternets play in the creative industries is really a sideshow. In creating a system of no-evidence-required takedowns, with no real consequences for fraudulent takedowns, these systems are huge gift to the world's worst criminals. For example, "reputation management" companies help convicted rapists, murderers, and even war criminals purge the internet of true accounts of their crimes by claiming copyright over them:
Remember how during the covid lockdowns, scumbags marketed junk devices by claiming that they'd protect you from the virus? Their products remained online, while the detailed scientific articles warning people about the fraud were speedily removed through false copyright claims:
Copyfraud – making false copyright claims – is an extremely safe crime to commit, and it's not just quack covid remedy peddlers and war criminals who avail themselves of it. Tech giants like Adobe do not hesitate to abuse the takedown system, even when that means exposing millions of people to spyware:
Dirty cops play loud, copyrighted music during confrontations with the public, in the hopes that this will trigger copyright filters on services like Youtube and Instagram and block videos of their misbehavior:
But even if you solved all these problems with filternets and takedown, this system would still choke on fair use and other copyright exceptions. These are "fact intensive" questions that the world's top experts struggle with (as anyone who watches the Blurred Lines panel can see). There's no way we can get software to accurately determine when a use is or isn't fair.
That's a question that the entertainment industry itself is increasingly conflicted about. The Blurred Lines judgment opened the floodgates to a new kind of copyright troll – grifters who sued the record labels and their biggest stars for taking the "vibe" of songs that no one ever heard of. Musicians like Ed Sheeran have been sued for millions of dollars over these alleged infringements. These suits caused the record industry to (ahem) change its tune on fair use, insisting that fair use should be broadly interpreted to protect people who made things that were similar to existing works. The labels understood that if "vibe rights" became accepted law, they'd end up in the kind of hell that the rest of us enter when we try to post things online – where anything they produce can trigger takedowns, long legal battles, and millions in liability:
But the music industry remains deeply conflicted over fair use. Take the curious case of Katy Perry's song "Dark Horse," which attracted a multimillion-dollar suit from an obscure Christian rapper who claimed that a brief phrase in "Dark Horse" was impermissibly similar to his song "A Joyful Noise."
Perry and her publisher, Warner Chappell, lost the suit and were ordered to pay $2.8m. While they subsequently won an appeal, this definitely put the cold grue up Warner Chappell's back. They could see a long future of similar suits launched by treasure hunters hoping for a quick settlement.
But here's where it gets unbelievably weird and darkly funny. A Youtuber named Adam Neely made a wildly successful viral video about the suit, taking Perry's side and defending her song. As part of that video, Neely included a few seconds' worth of "A Joyful Noise," the song that Perry was accused of copying.
In court, Warner Chappell had argued that "A Joyful Noise" was not similar to Perry's "Dark Horse." But when Warner had Google remove Neely's video, they claimed that the sample from "Joyful Noise" was actually taken from "Dark Horse." Incredibly, they maintained this position through multiple appeals through the Content ID system:
In other words, they maintained that the song that they'd told the court was totally dissimilar to their own was so indistinguishable from their own song that they couldn't tell the difference!
Now, this question of vibes, similarity and fair use has only gotten more intense since the takedown of Neely's video. Just this week, the RIAA sued several AI companies, claiming that the songs the AI shits out are infringingly similar to tracks in their catalog:
Even before "Blurred Lines," this was a difficult fair use question to answer, with lots of chewy nuances. Just ask George Harrison:
https://en.wikipedia.org/wiki/My_Sweet_Lord
But as the Engelberg panel's cohort of dueling musicologists and renowned copyright experts proved, this question only gets harder as time goes by. If you listen to that panel (if you can listen to that panel), you'll be hard pressed to come away with any certainty about the questions in this latest lawsuit.
The notice-and-takedown system is what's known as an "intermediary liability" rule. Platforms are "intermediaries" in that they connect end users with each other and with businesses. Ebay and Etsy and Amazon connect buyers and sellers; Facebook and Google and Tiktok connect performers, advertisers and publishers with audiences and so on.
For copyright, notice-and-takedown gives platforms a "safe harbor." A platform doesn't have to remove material after an allegation of infringement, but if they don't, they're jointly liable for any future judgment. In other words, Youtube isn't required to take down the Engelberg Blurred Lines panel, but if UMG sues Engelberg and wins a judgment, Google will also have to pay out.
During the adoption of the 1996 WIPO treaties and the 1998 US DMCA, this safe harbor rule was characterized as a balance between the rights of the public to publish online and the interest of rightsholders whose material might be infringed upon. The idea was that things that were likely to be infringing would be immediately removed once the platform received a notification, but that platforms would ignore spurious or obviously fraudulent takedowns.
That's not how it worked out. Whether it's Sony Music claiming to own your performance of "Fur Elise" or a war criminal claiming authorship over a newspaper story about his crimes, platforms nuke first and ask questions never. Why not? If they ignore a takedown and get it wrong, they suffer dire consequences ($150,000 per claim). But if they take action on a dodgy claim, there are no consequences. Of course they're just going to delete anything they're asked to delete.
This is how platforms always handle liability, and that's a lesson that we really should have internalized by now. After all, the DMCA is the second-most famous intermediary liability system for the internet – the most (in)famous is Section 230 of the Communications Decency Act.
This is a 27-word law that says that platforms are not liable for civil damages arising from their users' speech. Now, this is a US law, and in the US, there aren't many civil damages from speech to begin with. The First Amendment makes it very hard to get a libel judgment, and even when these judgments are secured, damages are typically limited to "actual damages" – generally a low sum. Most of the worst online speech is actually not illegal: hate speech, misinformation and disinformation are all covered by the First Amendment.
Notwithstanding the First Amendment, there are categories of speech that US law criminalizes: actual threats of violence, criminal harassment, and committing certain kinds of legal, medical, election or financial fraud. These are all exempted from Section 230, which only provides immunity for civil suits, not criminal acts.
What Section 230 really protects platforms from is being named to unwinnable nuisance suits by unscrupulous parties who are betting that the platforms would rather remove legal speech that they object to than go to court. A generation of copyfraudsters have proved that this is a very safe bet:
In other words, if you made a #MeToo accusation, or if you were a gig worker using an online forum to organize a union, or if you were blowing the whistle on your employer's toxic waste leaks, or if you were any other under-resourced person being bullied by a wealthy, powerful person or organization, that organization could shut you up by threatening to sue the platform that hosted your speech. The platform would immediately cave. But those same rich and powerful people would have access to the lawyers and back-channels that would prevent you from doing the same to them – that's why Sony can get your Brahms recital taken down, but you can't turn around and do the same to them.
This is true of every intermediary liability system, and it's been true since the earliest days of the internet, and it keeps getting proven to be true. Six years ago, Trump signed SESTA/FOSTA, a law that allowed platforms to be held civilly liable by survivors of sex trafficking. At the time, advocates claimed that this would only affect "sexual slavery" and would not impact consensual sex-work.
But from the start, and ever since, SESTA/FOSTA has primarily targeted consensual sex-work, to the immediate, lasting, and profound detriment of sex workers:
https://hackinghustling.org/what-is-sesta-fosta/
SESTA/FOSTA killed the "bad date" forums where sex workers circulated the details of violent and unstable clients, killed the online booking sites that allowed sex workers to screen their clients, and killed the payment processors that let sex workers avoid holding unsafe amounts of cash:
Despite half a decade of SESTA/FOSTA, despite 15 years of filternets, despite a quarter century of notice-and-takedown, people continue to insist that getting rid of safe harbors will punish Big Tech and make life better for everyday internet users.
As of now, it seems likely that Section 230 will be dead by then end of 2025, even if there is nothing in place to replace it:
This isn't the win that some people think it is. By making platforms responsible for screening the content their users post, we create a system that only the largest tech monopolies can survive, and only then by removing or blocking anything that threatens or displeases the wealthy and powerful.
Filternets are not precision-guided takedown machines; they're indiscriminate cluster-bombs that destroy anything in the vicinity of illegal speech – including (and especially) the best-informed, most informative discussions of how these systems go wrong, and how that blocks the complaints of the powerless, the marginalized, and the abused.
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If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
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The classic trilemma goes: “Fast, cheap or good, pick any two.” The Moderator’s Trilemma goes, “Large, diverse userbase; centralized platforms; don’t anger users — pick any two.” The Moderator’s Trilemma is introduced in “Moderating the Fediverse: Content Moderation on Distributed Social Media,” a superb paper from Alan Rozenshtein of U of Minnesota Law, forthcoming in the journal Free Speech Law, available as a prepub on SSRN:
If you’d like an essay-formatted version of this post to read or share, here’s a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
Rozenshtein proposes a solution (of sorts) to the Moderator’s Trilemma: federation. De-siloing social media, breaking it out of centralized walled gardens and recomposing it as a bunch of small servers run by a diversity of operators with a diversity of content moderation approaches. The Fediverse, in other words.
In Albert Hirschman’s classic treatise Exit, Voice, and Loyalty, stakeholders in an institution who are dissatisfied with its direction have two choices: voice (arguing for changes) or exit (going elsewhere). Rozenshtein argues that Fediverse users (especially users of Mastodon, the most popular part of the Fediverse) have more voice and more “freedom of exit”:
Large platforms — think Twitter, Facebook, etc — are very unresponsive to users. Most famously, Facebook polled its users on whether they wanted to be spied on. Faced with overwhelming opposition to commercial surveillance, Facebook ignored the poll result and cranked the surveillance dial up to a million:
A decade later, Musk performed the same stunt, asking users whether they wanted him to fuck all the way off from the company, then ignored the vox populi, which, in this instance, was not vox Dei:
Facebook, Twitter and other walled gardens are designed to be sticky-traps, relying on high switching costs to keep users locked within their garden walls which are really prison walls. Internal memos from the companies reveal that this strategy is deliberate, designed to keep users from defecting even as the service degrades:
By contrast, the Fediverse is designed for ease of exit. With one click, users can export the list of the accounts they follow, block and mute, as well as the accounts that follow them. With one more click, users can import that data into any other Fediverse server and be back up and running with almost no cost or hassle:
Last month, “Nathan,” the volunteer operator of mastodon.lol, announced that he was pulling the plug on the server because he was sick of his users’ arguments about the new Harry Potter game. Many commentators pointed to this as a mark against federated social media, “You can’t rely on random, thin-skinned volunteer sysops for your online social life!”
https://mastodon.lol/@nathan/109836633022272265
But the mastodon.lol saga demonstrates the strength of federated social media, not its weakness. After all, 450 million Twitter users are also at the mercy of a thin-skinned sysop — but when he enshittifies his platform, they can’t just export their data and re-establish their social lives elsewhere in two clicks:
Mastodon.lol shows us how, if you don’t like your host’s content moderation policies, you can exercise voice — even to the extent of making him so upset that he shuts off his server — and where voice fails, exit steps in to fill the gap, providing a soft landing for users who find the moderation policies untenable:
https://doctorow.medium.com/twiddler-1b5c9690cce6
Traditionally, centralization has been posed as beneficial to content moderation. As Rozenshtein writes, a company that can “enclose” its users and lock them in has an incentive to invest in better user experience, while companies whose users can easily migrate to rivals are less invested in those users.
And centralized platforms are more nimble. The operators of centralized systems can add hundreds of knobs and sliders to their back end and twiddle them at will. They act unilaterally, without having to convince other members of a federation to back their changes.
Centralized platforms claim that their most powerful benefit to users is extensive content moderation. As Tarleton Gillespie writes, “Moderation is central to what platforms do, not peripheral… [it] is, in many ways, the commodity that platforms offer”:
Centralized systems claim that their enclosure keeps users safe — from bad code and bad people. Though Rozenshtein doesn’t say so, it’s important to note that this claim is wildly oversold. Platforms routinely fail at preventing abuse:
But even where platforms do act to “keep users safe,” they fail, thanks to the Moderator’s Trilemma. Setting speech standards for millions or even billions of users is an impossible task. Some users will always feel like speech is being underblocked — while others will feel it’s overblocked (and both will be right!):
And platforms play very fast and loose with their definition of “malicious code” — as when Apple blocked OG App, an Instagram ad-blocker that gave you a simple feed consisting of just the posts from the people you followed:
To resolve the Moderator’s Trilemma, we need to embrace subsidiarity: “decisions should be made at the lowest organizational level capable of making such decisions.”
For Rozenshtein, “content-moderation subsidiarity devolves decisions to the individual instances that make up the overall network.” The fact that users can leave a server and set up somewhere else means that when a user gets pissed off enough about a moderation policy, they don’t have to choose between leaving social media or tolerating the policy — they can simply choose another server that’s part of the same federation.
Rozenshtein asks whether Reddit is an example of this, because moderators of individual subreddits are given broad latitude to set their own policies and anyone can fork a subreddit into a competing community with different moderation norms. But Reddit’s devolution is a matter of policy, not architecture — subreddits exist at the sufferance of Reddit’s owners (and Reddit is poised to go public, meaning those owners will include activist investors and large institutions that might not care about your little community). You might be happy about Reddit banning /r_TheDonald, but if they can ban that subreddit, they can ban any subreddit. Policy works well, but fails badly.
By moving subsidiarity into technical architecture, rather than human policy, the fediverse can move from antagonism (the “zero-sum destructiveness” that dominates current online debate) to agonism, where your opponent isn’t an enemy — they are a “political adversary”:
Here, Rozenshtein cites Aymeric Mansoux and Roel Roscam Abbing’s “Seven Theses On The Fediverse And The Becoming Of Floss”:
https://test.roelof.info/seven-theses.html
For this to happen, different ideologies must be allowed to materialize via different channels and platforms. An important prerequisite is that the goal of political consensus must be abandoned and replaced with conflictual consensus…
So your chosen Mastodon server “may have rules that are far more restrictive than those of the major social media platforms.” But the whole Fediverse “is substantially more speech protective than are any of the major social media platforms, since no user or content can be permanently banned from the network and anyone is free to start an instance that communicates both with the major Mastodon instances and the peripheral, shunned instances.”
A good case-study here is Gab, a Fediverse server by and for far-right cranks, conspiratorialists and white nationalists. Most Fediverse servers have defederated (that is, blocked) Gab, but Gab is still there, and Gab has actually defederated from many of the remaining servers, leaving its users to speak freely — but only to people who want to hear what they have to say.
This is true meaning of “freedom of speech isn’t freedom of reach.” Willing listeners aren’t blocked from willing speakers — but you don’t have the right to be heard by people who don’t want to talk to you:
Fediverse servers are (thus far) nonprofits or hobbyist sites, and don’t have the same incentives to drive “engagement” to maximize the opportunties to show advertisements. Fediverse applications are frequently designed to be antiviral — that is, to prevent spectacular spreads of information across the system.
It’s possible — likely, even — that future Fediverse servers will be operated by commercial operators seeking to maximize attention in order to maximize revenue — but the users of these servers will still have the freedom of exit that they enjoy on today’s Jeffersonian volunteer-run servers — and so commercial servers will have to either curb their worst impulses or lose their users to better systems.
I’ll note here that this is a progressive story of the benefits of competition — not the capitalist’s fetishization of competition for its own sake, but rather, competition as a means of disciplining capital. It can be readily complemented by discipline through regulation — for example, extending today’s burgeoning crop of data-protection laws to require servers to furnish users with exports of their follow/follower data so they can go elsewhere.
There’s another dimension to decentralized content moderation that exit and voice don’t address — moderating “harmful” content. Some kinds of harm can be mitigated through exit — if a server tolerates hate speech or harassment, you can go elsewhere, preferably somewhere that blocks your previous server.
But there are other kinds of speech that must not exist — either because they are illegal or because they enact harms that can’t be mitigated by going elsewhere (or both). The most spectacular version of this is Child Sex Abuse Material (CSAM), a modern term-of-art to replace the more familiar “child porn.”
Rozenshtein says there are “reasons for optimism” when it comes to the Fediverse’s ability to police this content, though as he unpacked this idea, I found it much weaker than his other material. Rozenshtein proposes that Fediverse hosts could avail themselves of PhotoDNA, Microsoft’s automated scanning tool, to block and purge themselves of CSAM, while noting that this is “hardly foolproof.”
If automated scanning fails, Rozenshtein allows that this could cause “greater consolidation” of Mastodon servers to create the economies of scale to pay for more active, human moderation, which he compares to the consolidation of email that arose as a result of the spam-wars. But the spam-wars have been catastrophic for email as a federated system and produced all kinds of opportunities for mischief by the big players:
Rozenshtein: “There is a tradeoff between a vibrant and diverse communication system and the degree of centralized control that would be necessary to ensure 100% filtering of content. The question, as yet unknown, is how stark that tradeoff is.”
The situation is much simpler when it comes to servers hosted by moderators who are complicit in illegal conduct: “the Fediverse may live in the cloud, its servers, moderators, and users are physically located in nations whose governments are more than capable of enforcing local law.” That is, people who operate “rogue” servers dedicated to facilitating assassination, CSAM, or what-have-you will be arrested, and their servers will be seized.
Fair enough! But of course, this butts up against one of the Fediverse’s shortcomings: it isn’t particularly useful for promoting illegal speech that should be legal, like the communications of sex workers who were purged from the internet en masse following the passage of SESTA/FOSTA. When sex workers tried to establish a new home in the fediverse on a server called Switter, it was effectively crushed.
This simply reinforces the idea that code is no substitute for law, and while code can interpret bad law as damage and route around it, it can only do so for a short while. The best use of speech-enabling code isn’t to avoid the unjust suppression of speech — it’s to organize resistance to that injustice, including, if necessary, the replacement of the governments that enacted it:
Rozenshtein briefly addresses the question of “filter bubbles,” and notes that there is compelling research that filter bubbles don’t really exist, or at least, aren’t as important to our political lives as once thought:
https://sciendo.com/article/10.2478/nor-2021-0002
Rozenshtein closes by addressing the role policy can play in encouraging the Fediverse. First, he proposes that governments could host their own servers and use them for official communications, as the EU Commission did following Musk’s Twitter takeover:
https://social.network.europa.eu
He endorses interoperability mandates which would required dominant platforms to connect to the fediverse (facilitating their users’ departure), like the ones in the EU’s DSA and DMA, and proposed in US legislation like the ACCESS Act:
To get a sense of how that would work, check out “Interoperable Facebook,” a video and essay I put together with EFF to act as a kind of “design fiction,” in the form of a user manual for a federated, interoperable Facebook:
https://www.eff.org/interoperablefacebook
He points out that this kind of mandatory interop is a preferable alternative to the unconstitutional (and unworkable!) speech bans proposed by Florida and Texas, which limit the ability of platforms to moderate speech. Indeed, this is an either-or proposition — under the terms proposed by Florida and Texas, the Fediverse couldn’t operate.
This is likewise true of proposals to eliminate Section 230, the law that immunizes platforms from federal liability for most criminal speech acts committed by their users. While this law is incorrectly smeared as a gift to Big Tech, it is most needed by small services that can’t possibly afford to monitor everything their users say:
One more recommendation from Rozenshtein: treat interop mandates as an alternative (or adjunct) to antitrust enforcement. Competition agencies could weigh interoperability with the Fediverse by big platforms to determine whether to enforce against them, and enforcement orders could include mandates to interoperate with the Fediverse. This is a much faster remedy than break-ups, which Rozenshtein is dubious of because they are “legally risky” and “controversial.”
To this, I’d add that even for people who would welcome break-ups (like me!) they are sloooow. The breakup of AT&T took 69 years. By contrast, interop remedies would give relief to users right now:
On Tue (Mar 7), I’m doing a remote talk for TU Wien.
On Mar 9, you can catch me in person in Austin at the UT School of Design and Creative Technologies, and remotely at U Manitoba’s Ethics of Emerging Tech Lecture.
On Mar 10, Rebecca Giblin and I kick off the SXSW reading series.
[Image ID: A trilemma Venn diagram, showing three ovoids in a triangular form, which intersect at their tips, but not in the middle. The ovoids are labeled 'Avoid angering users,' 'Diverse userbase,' 'Centralized platforms.' In the center of the ovoids is the Mastodon mascot. The background is composed of dead Twitter birds on their backs with exes for eyes.]
@Regranned from @kristenanniebell - WATCH full video: http://bit.ly/2Erd6yW JOIN US: We need to urge Congress to amend #CDA230 on National Human Trafficking Awareness Day. http://p2a.co/1LTNEsS #ListenToSurvivors #IamJaneDoe #PassSESTA #TIMESUP @worldweus @sffny - #regrann
