Framing the Public Interest Agenda - Beyond the Narrative of
“Content vs. Tech”
Framing Digital Consumer Rights
US experience is v different from rest of world—want to
support the int’l discussion keeping that in mind. US libraries are ubiquitous,
122,000 in US; int’lly, often they’re more gov’t focused. Most tech companies
are globally minded—come up with Content ID, etc. to go through all
jurisdictions. So int’l issues affect consumers here.
Consumer Bill of Rights was drafted some time ago—Zoe Lofgren
& Boucher. Dept of Commerce also has White/Green papers. Places to start?
Dark patterns: example of non-© issue that is about being
free from manipulation—consumer bill of rights shouldn’t just focus on ©. A
bunch of things can undermine consumers’ digital rights. What is “information
justice”? Defensive/we don’t like big tech/mechanisms of resistance like
protest v. affirmative visions of social life.
Google is still the only company supporting policy work in ©
space where Anthropic & OpenAI & everyone else is benefiting from it.
Bill of rights as a foundational concept that could also
provide int’l models. Framing human rights. Biden admin’s AI Bill of Rights
could also be a source of inspiration. Privacy/consumer rights provisions built
into any AI settlement.
Current democratic crisis is so broad that little corners of
© are not going to be compelling; the temptation is to think that the public
interest is whatever doesn’t serve the interests of big tech.
Participatory democracy as a structuring idea: need agency
as citizens—access to info, quality of info ecosystem, ability to communicate
w/each other not always mediated by algorithms.
Copyright in a quixotic place: enormous obstacle to many
things even as content owners complain that there’s too much competition. The
importance of © in this era for creativity is completely different from what it
used to be and that gets lost.
There aren’t many functional ways to regulate content
online. Copyright is asked to be a jobs program, privacy law, antidefamation
law, to carry all kinds of water b/c it’s there and people can see they’re not
getting any help to solve digital problems. Congress also realizes this for
better or worse. Anticircumvention exceptions are an example of realizing they
had to make it someone else’s problem or nothing would happen.
Lots of nonprofit & public benefit & prosocial uses
of tech but they tend to be invisible to average person (except Wikipedia).
Everyone’s yelling at ChatGPT, but integrating AI into hospitals for info collation/troubleshooting
insurance is making huge strides, not for diagnosis but for better management—internal
only. Fear of backlash is one reason for silence.
There is a difference b/t consumer advocacy and public
interest advocacy—they don’t overlap as much today as they did 10 years ago
though there’s still a ton of overlap. Music streaming as an example: consumers
benefit from Spotify but the music ecosystem is tanking as a result of it.
Tech/public interest coalition broke down, and rhetorically public interest
messaging was tied too closely to “you need fair use so you can do this fun
thing on the internet.” Internet is surveillance, AI in your job, etc. We need
to pivot to address bigger questions and our positions’ importance to them.
Antitrust moment: is it the hammer that we need to turn everything into a nail?
Room for discussion about antitrust/© interface as policy (not whether having 3
record labels is technically a “monopoly”). RIAA speaks as if for “creators”
but they’re representing the intermediaries; musicians are independent
contractors who are very hard to organize for a variety of reasons.
The right to share with my friends; the right to tinker; the
right to transform; the right to repair. The cost of access/price discrimination
is also relevant & the huge wealth transfer from publishers & consumers
to intermediaries—terms and nature of access. Consumer as creator also matters.
Consumers’ interests in reaching audiences and interacting w/one another.
Consider also FTC/deceptive conduct restrictions/state consumer protection for
shaping production & consumption of content. Are the terms of the exchange
unfair or deceptive? Antitrust has the potential to expand again. But Google
search case is depressing in that regard b/c it shows the limits of antitrust
remedies.
Product liability/failure to warn/plaintiffs’ bar as
potential allies? Some of the tort litigation is brought by copyright ps’
lawyers. Folks in this room use the internet very differently from one another
and from the ways that many politically engaged young people do. Tiktok: you
can train your algorithm away from not just topics but tones. As a result, when
you think about losing your ability to lend a CD to a friend—teenagers don’t
think about that any more; they just tell you to go to YT or Spotify. So
picking that as a battleground won’t resonate w/a lot of younger people.
© misuse: more flexible than antitrust? Not as constrained
as patent law misuse.
We’re better at ID’ing copyright problems or how problems
are being caused behind the scenes even as we argue that © isn’t the solution
to all your problems.
If we can’t figure out how to understand or mobilize people b/c
we don’t know what they’re doing, that feels like the authoritarians have one—at
some level, we need a common culture. That’s about journalism, ©, and many
other things—seems like an order of operations problem.
Control of Information and Knowledge - Responding to
Technical, Business Structure,
Regulation, Lawfare, Contractual and Other Means Beyond Copyright
Style claims: people think they’re supporting individual
artists but style protection would let Disney claim to control modern
Polynesian art (Moana). How do we talk about why and how it’s really important
to not expand ownership of ideas & info even if it feels pleasant to think
of it as a weapon against big tech.
1202 claims: huge statutory damage assertions, even if
people aren’t © owners. The play is extortion, not stopping AI. 1201 cases are
challenging web scraping as violation of 1201. Big threat to viability of open
internet.
Music: Controlled private domain—public domain music that is
still hard to access through score controls. Draws attention to market power. Publishers
will only rent scores. Similarly warps selection of scores by operas, ballets,
etc.
Protecting the Roles of Public Institutions - Libraries,
Archives, Museums
Provocation: consumer interests are losers in this policy
space. Access to information is practically more broad, often freely or for
relatively low costs. Outside of right to repair, where there is more appeal,
it’s pointless to talk about consumer interests bc it’s so much better now than
it used to be. Disappearance of 1984 from Kindle is an exception that proves
the rule.
Preservation: physical items are easier legally speaking;
licensed access means someone else’s server is in charge. But maybe the
solution is ultimately not © or exceptions but instead money: finding mechanisms
to work with industries. Films—would like to believe the industry wants preservation
and could accept preservation on a voluntary basis. It would take a boatload of
money though. Let the Academy run the archive to reassure industry that it’s an
archive not to be used for piracy. We want our analog facility, but digital
levels of access; we may have to accept tradeoffs. What if we can’t save everything?
Not everything can/should be digitized, and even if it is, preservation institutions
are brittle. The copy is the point: do we need shadow libraries? Something
else? Technical solution to allow controls for reassurance? [Have big content
owners ever been reassured enough to allow permanent copies? Maybe w/ music
downloads b/c that’s no longer a big consumption vector.]
Telecom conceives of libraries as fundamental to broadband
access; should also frame them in © as fundamental to access to culture.
Monopsony problem w/Overdrive means that more money can’t solve
the problem—they’ll just soak up as much money as is available.
What is the Public Interest in Copyright Law in Relation to
Other Consumer Interests - Recognizing Accretive Surveillance Harms
[personal matters took me out of the room] Anonymity/ability
to be pseudonymous online. Europe has more experience balancing incommensurable
human rights. Publishers would love to have all the data in the hopes of being
able to monetize it somehow, but it seems to be turning into a panopticon w/o
even that. Amazon doesn’t give publishers their data. Data collection is a
reflex but may not have as much economic value as hoped—that might be a point
where we could find common cause. Publishers often still operate like 19th
century businesses. Simon & Schuster merger documents: they just guess
whether a book is going to be popular.
But big businesses are hungry: Elsevier is bidding on ICE
contracts. Tying back to ©: Hachette is a case in point. Are we going to allow
libraries without the strictures imposed by publisher agreements copy & lend
works while protecting users’ privacy? We should insist on the public benefits
of privacy. Compare to invasive level of detail demanded for 1201 exceptions.
We don’t have enough privacy-© overlap in scholarship. We
have to recognize the various other interests to address & name. And
remember that we have to deal w/privacy overrides in contracts—that’s why
ownership is not the answer for privacy. AI is an opportunity to bring privacy
folks into consultation.
It’s worse when people have to pay twice—both for access to
content and then with their data. It should be one or the other: content for
free, in return for sitting through ads, not double-dipping. People hate data brokers;
they don’t like their info being used in completely unrestrained ways. Related
to labor issues: people who are surveilled and subject to secret algorithms
that can change their pay/kick them off a gig work app with no recourse to
them: that’s a privacy issue!
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