Insurrectionist sprinter Josh Hawley has joined the growing chorus of GOP politicians who’ve spent years doing jack shit about U.S. consumer privacy abuses, and now want to pretend that banning a single app — TikTok — will protect American consumers from a problem they themselves created.
“TikTok is China’s backdoor into Americans’ lives. It threatens our children’s privacy as well as their mental health,” he said on Twitter. “Now I will introduce legislation to ban it nationwide.”
The problem, as we note every time GOP FCC Commissioner Brendan Carr puts on a similar performance, is that these guys have spent their entire careers fighting against meaningful privacy and security standards, creating the very problem they’re now pretending to address.
They oppose privacy legislation of any kind. They oppose holding companies and executives accountable for privacy abuses. They oppose fighting corruption. They oppose expanding mental health care. And they fight tooth and nail to ensure that privacy regulators at the FTC routinely lack the staff, resources, or authority to police bad actors in adtech/telecom/apps consistently at any scale.
That has resulted in a parade of companies over-collecting consumer data and then selling access to it to any imbecile with a nickel. As such, banning TikTok does nothing. You’ve singled out one company in an ocean of international companies and services all doing effectively the same thing. And the Chinese government can buy all of this data from a rotating crop of dodgy data brokers.
The motivation here isn’t consumer privacy or national security. The Trumpist GOP hasn’t shown itself to be consistent enough politically, ethically, or intellectually to deserve having any of their comments or proposals taken at face value.
I still think the GOP hyperventilation over TikTok is, as most things the modern GOP does, a dumb performance. It agitates a xenophobic base and creates the flimsy impression the GOP is “doing something about China.” And, I’d all but guarantee the GOP-coddling execs at Facebook are working overtime behind the scenes to spread moral panic about a competitor.
But, more realistically I think, this hyperventilation over TikTok nudges the ball toward the GOP’s ultimate goal: forcing the sale of the most popular video app in America to one of their cronyistic BFFs. At which point, said BFFs will engage in all the same (or worse) behavior TikTok’s now engaged in.
Trump clumsily gave this game away a while back when he tried to offload the company to his Republican-allied buddies at Walmart and Oracle. I still think that’s the ultimate goal here. And not because the GOP cares about national security and privacy, but because some rich folks are in their ear drooling over the possibility of owning TikTok’s growing ad revenue.
Let’s get this out of the way right up front: Senator Josh Hawley is not a Good Person. The former attorney general had the chance to be a good person, but instead became the poster boy for insurrection by raising his fist in support of Trump fans on their way to raiding the Capitol building in hopes of illegally keeping an un-elected president in office.
He was not great before this moment of infamy, either. He pledged himself to Donald’s causes, taking aim at tech companies and Section 230 immunity because his new boss thought the real problem with the internet was all the moderation efforts that resulted in fewer MAGA bigots baying for the blood of the president’s many, many, many enemies on social media platforms.
But before he was an extremely subservient senator, he was the Attorney General for the state of Missouri. Maybe he was ok at his job. His record has hits and misses, like anyone in the difficult position of appeasing political powers while at least tipping the hat occasionally towards the best interests of the public.
But Hawley hitched his star to Team Trump. To get to where he wanted to go, he got in on the grift. And for that, he’s been sanctioned. Most politicians will bend rules. The problem here is that the rules got bent while Hawley was still the state’s top law enforcement official — you know, the sort of person who punishes people who break the rules. And, conveniently, the person who can make final calls on public records requests to decide what the public can or can’t obtain.
A state judge held Tuesday that U.S. Senator Josh Hawley, while acting as the Missouri attorney general, intentionally withheld government communications to avoid damage to his 2018 Senate campaign.
Cole County Judge Jon Beetem, a Republican, found that the context behind the records requests in question supports the contention that the AG’s office acted in a knowing and purposeful manner in refusing to release the records.
It only took Judge Beetem 19 pages [PDF] to fine Hawley $12,000, a cost he may decide to offload on his supporters, since that’s the way Trump does it. It may not seem like much (it isn’t!), but it is the maximum fine allowed by law. That’s $5,000 for each “purposeful violation” and $1,000 for each “knowing violation.” One and the same, I would think, but I’m totally here for the compounding.
The court says Hawley began using a personal email address “as early as January 2017.” Not cool, especially since Hawley being state AG gave him “significant familiarity” with the state’s public records requirements. That’s against the rules.
AGO [Attorney General’s Office] policies instruct employees that they can ensure records concerning public business are retained by the AGO by providing them to the custodian of records. AGO policies also prohibit AGO employees from conducting AGO business on private emails.
So, there’s no way Hawley didn’t know what was the what when he decided to (1) use a private email address, and (2) deny requests that might have exposed his shittiness.
The court, however, exposes both. And then it goes further, tying what was withheld to Hawley’s Senate campaign:
Contrary to the AGO’s suggestion, the fact that the AGO was involved in a different lawsuit against DSCC [the public records requester and supporter of Hawley’s opposition in the Senate race] concerning a different Sunshine Law request does not sweep all DSCC requests under the Litigation Exemption. This is because the Litigation Exemption does not shield documents from production just because they concern potentially controversial subject matter that might someday become the subject of litigation.
The exemption doesn’t apply. The AGO’s office is required to produce all responsive records, even if the head of the office is trying to subvert that by using a personal email account to conduct government business. And the AGO’s office (along with AG Hawley) is not allowed to withhold records simply because their release might jeopardize the AG’s political campaign.
The court says its decision will not force every public agency to have access to every public employee’s private email accounts. That is not the conclusion it reaches. But it says the AG’s office suggested remedy is unacceptable.
The approach urged by the AGO, on the other hand, is unprecedented and creates a roadmap for abuse. It would allow the agency and its custodian to shield public records merely by storing them offsite. By simply choosing to conduct business over private email, or to work on private computers and devices, agencies could deny citizens the open government that the General Assembly sought to ensure and render the Sunshine Law toothless.
Then the court arrives at its conclusion: the AG’s office didn’t just violate law and policy to deny a request. It violated law and policy for the apparent purpose of preventing negative information from harming AG Hawley’s Senate run:
The Courts conclusion that the AGO‘s violations were knowing and purposeful is supported by the context surrounding these request, by the AGO’s conduct in response to the requests, and by the shifting rationales the AGO has offered to explain its failure to tum over responsive documents. To begin, the content of the requests and the respective motivations of both the AGO and DSCC provide essential context. Then-Attomey General Hawley was actively running for U.S. Senate at the time of these requests, which were submitted by a national party committee supporting his opponent. The requested documents showed—at a minimum—a questionable use of government resources, demonstrated by the fact that their eventual public release helped trigger an investigation by the Secretary of State’s Office into the potential misuse of government funds to support Attorney General Hawley’s Senate campaign.
By failing to produce the requested records, Mr. Hartman and the AGO prevented an opposing party committee from accessing documents potentially damaging to then-Attorney General Hawley’s political campaign. What is more, Mr. Hartman—the individual at the enter of the AGO’s failure to turn over these records—is included on much of the correspondence in question, was involved with the Hawley campaign as early as January 2017, and ultimately became Senator Hawley’s state director. This context compels the conclusion that the decision to withhold documents responsive to DSCC’s Sunshine Law requests was made by public officials who had personal and professional stakes in the documents not being released and in the success of then-candidate Hawley’s campaign.
Huh. It looks like Hawley’s policy-violating sin of omission may have helped him… I don’t know.. gain an unfair advantage in an election? I mean, there were better ways to handle this. Not that Hawley would know, but there are. I mean, if you’re concerned your political opponents might use information about election ethics violations against you maybe DON’T COMMIT CAMPAIGN ETHICS VIOLATIONS. Just a thought.
But if you can’t play it honest the first time, odds are you’re going to be dishonest the second time around. A $12,000 slap on the wrist isn’t going to make Hawley honest. But it does, at least, drag some more of his extremely dirty laundry out into the sunlight. Maybe the next time he’s up for election, Missouri residents will remember he cheated and lied to get where he is.
Summer is nearly over, but, for many politicians, destructive tech regulations are always in season. Congress is back from recess, and the American Innovation and Choice Online Act (AICOA) is once more under consideration.
Senator Amy Klobuchar’s “antitrust” pet project would crack down on the five biggest tech giants — Amazon, Apple, Facebook, Google, and Microsoft — for business practices alleged to be “anticompetitive.” The bipartisan support that propelled the bill through the Judiciary Committee and into the Senate is easy to explain: The stench of grievance politics is so thick one can practically taste it.
The AICOA is also a masterclass in bad governance: The bill is filled with shoddy writing that will delegate vast, arbitrary powers to the administrative state.
First off, the AICOA’s language is incredibly vague. As noted by the American Bar Association, the bill’s drafters eschewed the typical legalese of antitrust — terms whose meanings and limitations have become scrutable through years of use and litigation — for nebulous new phrases such as “materially harm” and “materially restrict or impede.” The legal parameters of this new terminology can be known only to God and the FTC.
Moreover, while a previous draft bans conduct that would cause “harm to the competitive process,” the current bill forbids conduct that would “result in harm to competition.” This semantic slide step suggests that Klobuchar et al. are more interested in picking individual winners and losers than protecting the systemic integrity of online commerce.
To fill in these intentionally cavernous ambiguities, the bill would empower the Federal Trade Commision and the Department of Justice to draft and publish guidelines to clarify which business practices are and are not to be considered anti-competitive. This is clearly too much legislative power delegated to unelected Article II folks. But it gets worse: The published guidelines won’t be binding, and the FTC and DOJ would be given further latitude to designate which eligible platforms would actually be subject to law. There would be no telling what behavior would violate the AICOA and which platforms would be subject to scrutiny in the first place. Given the record of current FTC Chair Lina Khan, however, you’d have to assume the worst. Giving bureaucrats the latitude to capriciously choose who is and isn’t affected by congressional statute and to apply laws on a discretionary basis is arbitrary power in its purest, most noxious form.
So how has this bill found bipartisan support? The answer lies in a pair of half-baked moral propositions.
Senator Klobuchar and many other Democrats have adopted the neo-Brandeisian view of antitrust: that corporate bigness is inherently evil. Barack Obama’s infamous “You didn’t build that” has morphed into “You must have stolen that.” The notion that big tech firms enjoy huge market share primarily because they have innovated and deployed economies of scale that enrich consumers and business users alike is inconceivable to the neo-Brandeisians. They can’t grasp the fact that market consolidation is often due to the quality and convenience of goods and services provided by market incumbents. In the case of the AICOA, as in most of their efforts, protecting consumer welfare plays second fiddle to an idiosyncratic need to claw at our society’s most successful entrepreneurs. If the AICOA’s drafters were actually concerned with preventing anticompetitive behavior, its restrictions would apply to all online businesses as well as brick-and-mortar retailers — instead of exclusively targeting a small cadre of currently disfavored tech giants.
AICOA’s Republican proponents — senators of no less stature than Ted Cruz and Josh Hawley — have another, more cynical justification for their “yea” votes: They see Klobachar’s antitrust blunderings as a convenient weapon with which they can fire away at their political foes. In order to score a largely symbolic victory over the presumed censorial instincts of big tech, Cruz and Hawley are happy to balloon federal power, hamper innovation, impose costs on their constituents, and blow up the market’s existing data-privacy safeguards. And after cleaning, polishing, and loading this regulatory gun, they are handing it directly to Khan’s radical FTC. Such efforts are cynical and profoundly un-American.
Friedrich Hayek famously argued that would-be regulators have a knowledge problem: that the information necessary to plan an economy is not and cannot be possessed by a philosopher king or an executive agency. These difficulties are surely compounded in a sector as dynamic and generally misunderstood as tech. The situation only worsens when politicians attempt to manifest their various culture war revenge fantasies.
Although the neo-Brandeisian Democrats and burn-it-down Republicans may never realize it, their constituents have already endorsed big tech with dollars and downloads. Once again, Hayek is vindicated: The uncoerced actions of individual actors will indeed create far more prosperity than the self-important machinations of their elected technocrats.
David B. McGarry is a Consumer Choice Fellow with Young Voices. He writes extensively on tech policy issues, appearing in such publications as RealClearPolicy and National Review. Follow him on Twitter @davidbmcgarry.
Here on Techdirt, we’ve written about a bunch of John Oliver’sLast Week Tonight shows that are quite frequently directly in agreement with what we write about on Techdirt. We’re often impressed at the level of detail and nuance he’s able to approach complex issues with, while (of course) keeping things quite funny. I know that he has a large, very smart team, that often digs in deep with experts in order to get a complete picture. That’s why his reports on SLAPP suits, voting machines, grandstanding state AGs, police accountability, encryption and much much more have been featured here as worth watching on important topics we’ve covered for decades.
However, I’m quite disappointed in his most recent show about antitrust reform and tech monopolies. I do think it’s worth watching, but it’s missing some important context that I would have normally expected from him and his team.
I think that the video does do a good job addressing some of the actual problems of giant tech companies and their power. Though, I do wonder about using a quote from Jonathan Taplin as support for anything, considering he’s an extremist copyright maximalist, whose screeds against Google and the internet are so full of wrongness that they’ve inspired a whole genre of NY Times corrections.
But, the problem with Oliver’s segment is that while it spends most of the episode laying out legitimate concerns about tech power concentration, it then simply accepts that the two popular bills making their way through Congress will actually help and won’t cause problems. Oliver embraces and supports the American Innovation and Choice Online Act (AICOA) and the Open App Markets bill. However, as we’ve explained, while both bills have some good parts, the only reason Republicans are supporting them is that they know that the bills will be massively abused to litigate content moderation decisions.
Oliver doesn’t mention this or explore the issues. He only mentions Republican support in noting that both Bernie Sanders and Josh Hawley support the bills, suggesting that the only reason the bills have bipartisan support is because they’re “too narrow.” But that ignores that the actual reason they have Republican support is because Republicans see this as a tool to punish and intimidate “big tech” into leaving their lies and propaganda online. Ted Cruz has repeatedly noted he supports these bills because they will “unleash the trial lawyers” on these companies.
And, just after Oliver’s segment aired, Hawley again bragged about using them to attack “woke” corporations:
And, at the very least, I’d expect Oliver and his team, with their willingness to explore nuances, to at least maybe explore why support for these bills are coming from copyright maximalist extremists and populist propagandist politicians.
But… he doesn’t.
Instead, he implies falsely that the only criticism of these bills is coming from big tech “shills.” And while it is true that some of the pushback on these bills is coming from disingenuous sources, using disingenuous arguments, some of the concerns are legit. And to wipe them away and assume that just because he’s accurately laid out the problem, that these bills are automatically a solution is the type of facile, but wrong, exploration of complex solutions I’m used to it from much of the rest of the media, but had come to expect better of from Oliver.
I mean, just as one example, four years ago, Oliver himself did a wonderful piece about how state Attorneys General abuse their positions for political means, often doing the will of certain industries, to attack other industries. And, I should note clearly here that these bills enable state AGs to go after the tech companies. So, if Oliver and his team are well aware of that, why are they downplaying the possibility that these bills might be abused and dangerous, political ways?
As we’ve discussed at length over the last few months, there are fairly easy ways that these bills could be amended to limit the possibility of abuse. But the Democrats sponsoring the bills have refused to do so, because they know they’d lose that critical “bipartisan support.” But, really, that should be the story here. The only reason these bills have bipartisan support is because Republicans know they’ll be abused, and WANT them to be abused. The only amendments we’ve seen have simply been to carve out certain industries after lobbyists complained.
Again, that seems like the kind of story I’d expect to see from Oliver, rather than full throated support for these bills.
The problems with copyright have been a subject of coverage here at Techdirt since the beginning, and for most of that time it has been largely a non-partisan subject. At the moment, however, that isn’t so much the case thanks to Josh Hawley’s war with Disney, which has created a situation where some copyright reform ideas that are conceptually good are mired in culture war issues, partisan politics, and unconstitutional nonsense. This week, we’re joined by the Niskanen Center’s Daniel Takash to discuss the problems with Hawley’s copyright bill and copyright law in general.
Apparently, I never should have wished on that old monkey’s paw for copyright term reduction. One of the very reasons why Techdirt exists in the first place, and why it was started nearly 25 years ago, was to fight back against over expansive copyright laws, and, as such, we’ve spent many years and many posts arguing about the problems of excessive copyright terms. Indeed, there are few things I’ve hoped for more in these two and a half decades than for Congress to realize the dangers of excessive copyright and to move to shorten copyright terms back towards their actual constitutional underpinnings.
Almost exactly ten years ago, Republicans in Congress actually seemed to recognize that copyright terms were too long, and published a paper arguing, in a principled way, for shorter copyright terms. Of course, within 24 hours, the screaming responses from Hollywood caused the paper to be pulled, and for the author of the paper to be fired.
So… now, we’re actually seeing a bill to reduce copyright terms, coming as promised from Senator Josh Hawley, one of the most performative, least principled elected officials around. Hawley has now officially released his Copyright Clause Restoration Act and made it abundantly clear that he’s doing so to punish Disney for that company’s political speech.
Everything about this bill is ridiculous and almost certainly unconstitutional. And I say that as someone who was arguing for shorter copyrights that were more closely aligned with the Constitution since Josh Hawley was in a private boys prep school (which is funny since he so wants to present himself as a man of the common people).
So, let’s go through the bill, and discuss what actually makes sense, but also why Hawley’s attempt here is so ridiculously bound to fail. It starts out by returning copyright term to what Hawley (incorrectly) refers to as the “original term.”
(1) ORIGINAL TERM.—Notwithstanding any provision of title 17, United States Code, or any other provision of law, copyright in any work shall endure for 28 years from the date it was originally secured.
(2) EXTENSION.—The holder of a copyright under paragraph (1) shall be entitled to a renewal and extension of the copyright in the applicable work for a further term of 28 years if the holder applies for that renewal and extension during the 1-year period before the expiration of the original term of the copyright under that paragraph.
So, first off, if we’re going back to the “original term” that would be 14 years with a 14 year renewable extension possible. The US didn’t shift to a 28 year/28 year extension copyright term until the Copyright Act of 1831. Also, I mean, if we’re going back to “original” copyright thinking, the law only applied to maps, charts, and books. Hell, sound recordings weren’t even covered by federal copyright law until 1972.
Anyway, there are actually strong public policy reasons to consider returning the US to a 28 year/28 year extension copyright system. Evidence has shown a massive cost to the public of our over extended copyright law — and the constitutional underpinnings of copyright law are that it must benefit the public (not, necessarily, the copyright holder). On top of that, back when we did have a 28/28 copyright system (which we had until 1978), the vast, vast majority of copyright holders did not renew their copyrights at the 28 year mark. The one exception, by the way, was movies (which, hold that thought…).
So, there are perfectly good, principled policy reasons to push for shorter copyright. Indeed, there are economic studies that have suggested the ideal copyright term for public benefit is somewhere around 15 to 38 years. And, it seems that a perfectly reasonable way to set this up is to have extremely short copyright terms, with frequent renewal periods that grow increasingly expensive. If it’s not worth it for someone to renew, let the work go into the public domain where the public can make use of it.
Of course, there are a few problems with jumping into this approach, with a big one being that in order to do this, the US would have to immediately violate a decently large number of international treaties. However, that’s long been the excuse of those looking to extend copyrights ever longer, or pushing ever more draconian copyright laws on the rest of us. They go running to international trade negotiations and slip in something awful, and then run back to Congress, demanding that we make copyright worse to meet our “international obligations.” After all, the architect of the DMCA, Bruce Lehman, has publicly admitted that this is how he got the DMCA into law. After Congress refused to pass it, he ran to Geneva, and got an international treaty passed, then went back to Congress insisting it had to enact the DMCA to comply with our “international obligations.”
That said, the reality is that Congress is not bound by any international treaties, and can pass legislation that violates them. That doesn’t mean it won’t create some international messes, though, and that could lead to retaliation in a variety of forms.
The next section of the bill then goes even further, and into murkier legal territory, by trying to claw back copyright terms already granted, making the law retroactive:
(2) RETROACTIVE EFFECT.—
(A) IN GENERAL.—Subject to subparagraph (B), subsection (a) shall apply with respect to a copyright that, on any date on or after May 1, 2022, is owned by a person that—
(i) has a market capitalization of more than $150,000,000,000; and
(ii)(I) is classified under North American Industry Classification System code 5121 or 71; or
(II) engages in substantial activities for which a code described in subclause (I) could be assigned.
Phew. So there’s a lot to break down here. This is Hawley’s weird attempt to make it obvious to everyone that this is, effectively, a bill of attainder, and specifically designed to punish Disney. Hawley, who positions himself as a “constitutional scholar” surely knows that bills of attainder are unconstitutional. I mean, it’s right there in Article I, Section 9, Clause 3:
No Bill of Attainder or ex post facto Law shall be passed.
A bill of attainder is defined as the legislature effectively targeting an individual, group, or company for punishment. And, I mean, Hawley didn’t shy away from making it clear that this was a bill of attainder in his press release, literally headlining it “Hawley Introduces Bill to Strip Disney of Special Copyright Protections.” That press release title is basically “hello, I am introducing a bill of attainder.” Because Disney has no “special” copyright protections. It just has copyright protections. And then literally calling out the company you are trying to punish as the reason for your bill is effectively handing them their brief to sue to stop the law as unconstitutional.
But, to really cement this home, while the bill would restrict all future copyright to a maximum of 56 years, it would strip only a small number of companies of their current copyrights. And from the text above, you can see how narrowly focused the bill is. Basically, everyone who has extremely long copyrights today can keep them unless the copyright is held to a company with a market cap over $150 billion (Disney is currently around $200 billion), and is classified in the NAICs system as being in two specific industries: 5121 for “Motion Picture and Video Industries” and 71 for “Art, Entertainment, and Recreation” which is the code that generally applies to theme park companies.
Doing a quick search around, it appears that the retroactive nature of the bill may only apply to a very small number of companies which are in those classifications and over $150 billion in market cap. On the Hollywood studio side, you have Disney and Comcast NBCUniversal (though NBCUniversal’s primary NAICS code is listed in 5152 for “pay and specialty TV”), but clause II would likely cover it. Netflix’s primary classification is otherwise, but it would also fit.
I guess it’s possible Amazon could get covered by this as well, as it owns MGM. MGM by itself has a much smaller market cap, but Amazon has a larger one. So if you lumped them together, it could take away all of Amazon’s copyrights and… well, wouldn’t that be interesting? Viacom’s market cap is below the threshold. Arguably, Apple might be covered as well. The new Warner Bros. Discovery market cap is also way below the threshold.
So, end result, no new copyrights can last more than 56 years. Most existing copyrights remain until they were set to go into the public domain, except for the um, “woke” corporations of Disney, NBCUniversal, Netflix, Amazon and Apple. It sure looks like this is directly targeting a very small number of companies — companies that Republicans have been known to criticize heavily.
There is also the takings issue. In the past, I’ve seen (mainly copyright maximalists) argue that reducing copyright would violate “the takings clause” of the 5th Amendment. This is the part that says “nor shall private property be taken for public use, without just compensation.” In general, I have problems with this applying to copyright, because I don’t think it’s appropriate to call copyright “private property.” And, in fact, if it is then it seems that the takings clause should have been violated when we massively extended copyright with the 1976 Copyright Act, and again in 1998 with the Sonny Bono Copyright Term Extension Act. In both cases, works that were slated to reach the public domain were “taken” back and held in copyright for many more years. If that’s not a “taking” under the 5th Amendment, then shortening copyright terms shouldn’t be either.
Still, I would bet that Disney and others would claim otherwise, and they would have to fight their way through the court. And we’ve seen that this particular court (even very recently) takes a very broad understanding of the “takings clause,” to the point that it would probably need to overrule its own ruling from just last year to decide otherwise.
There is one final clause in the bill, a weak attempt to deal with cases where some of the companies listed above have copyrights that would expire under this bill, but which are still in active use being licensed. There, it includes some terms under which the license would expire over a 10 year period, effectively phasing out the copyright over that time.
(B) LICENSING.—If, as of May 1, 2022, a person is operating under a license with respect to a copyright that is subject to subparagraph (A) and that, because of the application of that subparagraph, would expire during the 10-year period beginning on May 1, 2022, that person shall continue to hold the rights contained in that license (to the exclusion of any person not granted those rights by a license before May 1, 2022) for a period that is the shorter of—
(i) 50 percent of the remaining license term, as of May 1, 2022; or
(ii) 10 years, beginning on May 1, 2022.
And, well, whatever. It’s not like this bill has a snowball’s chance in hell of going anywhere. Because it’s not actually meant to go anywhere. It’s all part of Hawley’s non-stop performative bullshit, playing to a base he believes is so stupid that they’ll lap up whatever culture war nonsense he puts in front of them. And, right now, they want their politicians to “punish” Disney, because Disney execs offered some mild criticism of Florida’s pro-bigotry bill.
Copyright terms should be reduced. Massively. But this isn’t going to do it. Nor is it actually intended to to do it. Copyright term reduction is just a convenient tool for Josh Hawley to do Josh Hawley kinds of things. Anyway, that will teach me never to wish on the old monkey’s paw for copyright term reduction ever again.
You will recall that Lauren Boebert was unsuprisingly confused about what lawmaking power she has as a lawmaker, having threatened to not “extend Micky (sic) Mouse’s trademark”, which is not a power Congress has. Josh Hawley, who has never been shy about threatening private companies over protected speech, at least has straight which law to threaten Disney with.
If you can’t read that, it says:
For years, @Disney has gotten special copyright protections from the federal government – allowing them to charge consumers more. Woke corporations shouldn’t get sweetheart deals. I’ll introduce legislation this week to end their special protections – enough is enough.
It’s not just what you do, but how and why you do it that matters. This is a perfect example. I too don’t want to see yet another extension of the current copyright term. Though, by all accounts, Disney has recognized how untenable further term extension is and hasn’t been lobbying for it at all. Ever since the public domain was allowed to return in the US, Hollywood has mostly accepted its fait regarding works from 95 years ago. But that doesn’t mean I want to live in an America where a select group of state actors can openly threaten private companies over protected speech.
Beyond that, it’s entirely unclear what legislation Hawley is proposing. Disney doesn’t have “special copyright protections”; it has the same protections as everyone else, albeit protections it specifically and heavily lobbied for. It’s unclear what Hawley is seeking to “end”.
The Walt Disney Company has lobbied multiple times to extend certain copyright protections so that their intellectual property would not fall into public domain. The Copyright Term Extension Act of 1998 extended corporate copyright protection from 75 years to 95 years, keeping Mickey Mouse under Disney’s control until at least 2024. These extensions don’t just apply to Disney, though they are the ones pushing the hardest for them.
So by all means, don’t extend copyright terms. Or, hey, even shorten them! But Hawley isn’t going to do that to one single company and he shouldn’t be allowed to do it at all on the basis of speech that he doesn’t like.
While the press and some policy circles have made a large stink the last few years about massive new “bipartisan support for antitrust reform,” we’ve noted that the push isn’t quite what’s being advertised. While some of the bills being proposed might help correct some competitive imbalances online, the push in general is bizarrely narrow and only targets some tech companies under some circumstances.
As a party that’s coddled monopolies (see: telecom, banking, airlines, insurance) for literally 40 years, the GOP support for “antitrust reform” has always been performative. The GOP largely sees “antitrust reform” as a way to gain leverage over social media giants so they can mandate the carriage of race-baiting propaganda, a cornerstone of GOP power in the face of shifting demographics and an aging electorate.
Democratic activists and lawmakers, hoping to push some of these antitrust bills across the finish line, have been debating whether crushing ethics underfoot is worth it. Case in point: some Democrats have chosen to partner with The American Principles Project on antitrust reform, despite the fact the group is jam-packed with no shortage of obvious bigotry:
“Consolidated corporate power is the biggest problem that we’re facing right now in our politics,” said Matt Stoller, research director at the anti-monopoly group American Economic Liberties Project, who regularly works with populist figures on the right, including APP. He said divisions within both parties about antitrust changes mean that supporters “have to cobble together a majority.”
There’s productively working with people you disagree with across the aisle, and then there’s… this. Authoritarians aren’t your friends. It doesn’t usually end well. And, as some other activists note in the piece, allying with bigots who literally want to destroy your constituents and everything they stand for just to pass some very limited reform laws (several of which have very concrete problems) isn’t worth it:
“It doesn’t make sense to work with someone that doesn’t share our values and doesn’t share our goal,” said Jeremie Greer, co-founder and executive director of economic rights group Liberation in a Generation. “I don’t think we’re fighting for the same thing.” Greer argued that the push for antitrust reform is essentially about increasing equality and strengthening democracy — and a group fighting against LGBTQ and minority rights is fundamentally opposed to that work.
Again, having some slightly more fair app stores or more competitive Amazon product listings isn’t going to mean a whole hell of a lot should authoritarians gain power and begin dismantling the law and numerous societal systems in a bid for complete and total domination of their political enemies. And make no mistake, while groups like this dress up far right authoritarianism and bigotry as a rosy-cheeked concern for family values, authoritarianism is very much what we’re talking about.
At the same time, if you’re a large U.S. company in any of a dozen heavily monopolized U.S. industries terrified of antitrust reform of any kind, highlighting these kind of issues in a bid to fracture delicate alliances is something you’d most certainly have your K Street policy and PR shops engaged in right now.
That said, if we’re going to tackle antitrust reform, let’s tackle antitrust reform. Instead, what we’ve wound up with is a bunch of extremely narrow bills that only meaningfully target a handful of companies that the GOP is mad at for belatedly policing political propaganda. And even then, this being the rabidly obstructionist GOP, there’s no guarantee they’ll show up to vote for a bill that actually does anything.
The entire recent “antitrust reform” effort literally pretends that sectors packed with natural monopolies (see: telecom) don’t exist. And while, yeah, I get the argument that some fairly minor progress in one industry is better than no progress at all, that’s not actually true if making that progress involves throwing your entire belief apparatus in the toilet and putting democracy and civility at risk.
Josh Hawley sucks. I disagree with him on about just about everything. And I am appalled by his support of the rioters who invaded the Capitol Building on January 6, 2021. It’s disappointing and shameful that a United States Senator would endorse a riot, especially a riot intended to challenge the indisputably legitimate election of the President of the United States. But the First Amendment says Hawley is entitled to his opinion, and he’s entitled to express it. And he’s entitled to quote other people to make his point.
Surprisingly, some people disagree. On April 10, Mickey H. Osterreicher published an op-ed in the Kansas City Star, arguing that Hawley shouldn’t and can’t use an iconic photograph of himself supporting the January 6 rioters to sell campaign merchandise. I endorse the shouldn’t in spades. Hawley’s actions were embarrassing, and it’s even more embarrassing that he’s capitalizing on them. But I disagree with the can’t. Hawley can absolutely use the photograph. And that’s a good thing.
In a nutshell, Osterreicher’s argument is that the photograph is protected by copyright, so the photographer (or copyright owner?) can dictate how it’s used.
No. That is ridiculously wrong. Yes, whoever owns the copyright in the photo is entitled to control its use, in order to generate a profit. But their rights are limited by the fair use doctrine, which says that people are entitled to use copyrighted works in order to criticize them.
Josh Hawley is using a very well-known photograph of himself to criticize people who criticize him for supporting the January 6 rioters. That is precisely the kind of use the fair use doctrine was intended to protect. In fact, it is the kind of parodic use that the founding fathers used to criticize loyalists in the Federalist Papers.
Fair use ensures copyright doesn’t violate the First Amendment. After all, copyright only regulates commercial speech. Why would anyone file an infringement claim, unless someone was competing with them? We all know that’s wrong. People use copyright claims because they want to silence people they dislike. That’s wrong. And it’s crummy. Some copyright lawyers like to pretend fair use is complicated. Give me a break. Every news organization relies on fair use every time it publishes a quotation.
Is there a copyright problem here? LOL. The photographer wanted to license, but only when convenient.
Let’s tell it like it is. This photographer wants to tell Senator Josh Hawley to shut up. And they want the government to tell him to shut up because they own a copyright on a photograph they took of him without his permission, and they don’t want him to use it.
It’s ok to think Josh Hawley sucks. But don’t be a landlord about it. You made your point, he’s entitled to make his.
We recently discussed noted fascist and fist-raiser Josh Hawley and his campaign’s decision to start selling campaign merchandise using a photo from a Politico photographer. As part of that post, we talked about how the Associated Press was looking into whether this constituted copyright infringement. I very much think it does not, given that the use is for political donations (speech), that it is at least mildly transformative, and there is zero harm done to the news organizations due to its use. On the other hand, I also very much expected a conflict over all of this.
And now here we are, with E&E News, which is owned by Politico, stating that the use of the image was unauthorized and demanding that Hawley stop using it.
“The photo was taken by E&E News photographer Francis Chung. We did not authorize its use by the Hawley campaign for the purpose of political fundraising, which the campaign has been put on notice of by legal counsel,” Politico spokesman Brad Dayspring said in an email. “We eagerly await a response, but in the interim again respectfully ask that the campaign immediately cease and desist unauthorized use of the image,” Dayspring said.
Now the open question is whether Politico is willing to actually move forward with a lawsuit against a sitting Senator over this. Why? Well, based on the campaign’s public response, it doesn’t appear that Hawley’s team has any intention of ceasing and/or desisting.
But, because we live in the dumbest timeline as the kids say, those public comments from Hawley’s team are also dickish in the most on-brand way and more than a little stupid.
“We haven’t received any correspondence from Politico or anyone else, but we are in full compliance with the law,” Hawley campaign spokesman Kyle Plotkin told HuffPost. “Perhaps Politico can show us the correspondence they sent to the many liberal groups who also used the photo.”
You can really feel Plotkin thinking he’s made an actual point here, but he hasn’t. I’ll just let Gizmodo’s Dell Cameron field that one.
