The Agony & Ecstasy of the PEN: The Silencing of Artists in the Name of Freedom
By Neil Turkewitz
Matt Bailey, PEN America’s digital freedom program director, recently posted an article entitled: “Three Big Discussions We Need to Have ASAP About AI and Social Media Moderation.” In case you’re not familiar with PEN America, their members include many famous and brilliant authors, and they describe themselves as follows:
“We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.”
The paper is an interesting look at a variety of key issues that need to addressed in examining the extent to which the moderation practices of major internet platforms advance the public interest. There are some key insights, including:
“Each [moderation] process — whether manual, automated, or some combination of the two — will evince biases based on its context, design, and implementation that must be examined not just by the companies or outside experts, but by all of us. Like any system that helps shape or control free speech and political visibility, we need to be asking about each of these moderation systems: What does it do well, what does it do poorly, whom does it benefit, and whom does it punish? To know the answer to these questions, we need real transparency into how they are working and real, publicly accountable feedback loops and paths to escalate injustices.”
I love the emphasis on contextualizing freedom, and breaking down generalizations to instead focus on the effects of moderation on disparate communities — on who benefits, and who pays, with particular attention on issues of race and gender, and the role of practices in addressing or expanding injustice. I agree wholeheartedly that this is the lens through which we need to examine moderation — indeed, the lens through which we should address all aspects of public policy and governance.
Sadly, notwithstanding this brilliant framing, and a nod to the fact that hate speech and online harassment have a particularly profound impact on the already marginalized and powerless, Matt falls into an analysis — common among folks that describe themselves as digital rights activists, based on the assumption that removal of content is more problematic to the exercise of freedom of expression than maintaining a hostile environment that effectively silences the speech of women, Blacks and other people of color. While there is no doubt that “over-moderation” and the removal of legitimate speech is problematic and deserves our attention, it seems fairly straightforward at this moment in history to note that “under-moderation” is a much more problematic and ubiquitous aspect of our environment, and one that demands our attention.
This disconnect manifests itself in a bizarre segment of the piece in which Matt argues that the experience of takedowns under the DMCA is Exhibit A in illustrating the risks of over-moderation. He writes:
“One of the less discussed impacts of over-moderation is down time. How long, on average, is a piece of content or account offline before it is restored, and what are the consequences of that outage? Down time is pure poison for writers, artists, and activists who are trying to build momentum — whether for a cause or to earn their livelihood. Over the last several years, YouTube’s copyright enforcement system has been a case in point, where certain content gets trapped in the platform’s attempt to police intellectual property. The problem here is that, while the non-violative content may eventually be restored, time moves on. Followers and the news cycle progress, and the clout, ad revenue, or sales that comes with them evaporate. The impact on the livelihood of independent writers and artists, and their ability to continue doing their work, can be devastating. And in the context of dissent, protest, and activism, the latency can wound a movement.”
I actually had to read that a few times because I thought my eyes were deceiving me. Is it possible that someone with proclaimed appreciation for the work of writers and artists could wholly ignore the elephant and describe only the tail? YouTube is famously awash in infringing content. Just this week, independent artist, Maria Schneider, filed a class action lawsuit against YouTube for their failure to address rampant piracy on their platform, noting that YouTube maintained an “aggressive policy of allowing obviously infringing videos to be uploaded with zero ‘friction’ and no screening, thus allowing infringing and illegally posted videos to be played and monetized by YouTube unless and until a takedown notice was received from the copyright owner.”
Indie artist organization, Music Workers Alliance, recently launched a petition that secured the signature of over 5,000 independent artists. They wrote “recorded work is no longer a viable income stream due to mass copyright infringement enabled by the Digital Millennium Copyright Act, Section 512. The MWA petition calls for these corporations to put an end to infringement by adopting “Standard Technical Measures” (STMs). Restoration of a fair digital market is impossible while YouTube — responsible for nearly half of all online music consumption — continues to profit while enabling mass infringement.”
In response to PEN America’s tweet, noted artist and artist-advocate, Crispin Hunt, tweeted:
C’mon : “The impact..[ of down-time on] ..artists…can be devastating..“
What of the. ‘devastation’ of copyright infringement? A few years ago I produced an EP of a great band, it was torrented 37,000 times in week one & had 1 million (illegitimately) on YouTube, but sold only 1,000 MP3’s. The band was dropped & now work in bars.”
And of course, the entire music community — from major labels to indies, publishers, artist unions (AMERICAN ASSOCIATION OF INDEPENDENT MUSIC; AMERICAN FEDERATION OF MUSICIANS; AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS; AMERICANA MUSIC ASSOCIATION; BROADCAST MUSIC, INC.; CHRISTIAN MUSIC TRADE ASSOCIATION; CHURCH MUSIC PUBLISHERS ASSOCIATION; GLOBAL MUSIC RIGHTS;THE LATIN ACADEMY OF RECORDING ARTS & SCIENCES, INC.; MUSIC MANAGERS FORUM — UNITED STATES; MUSIC PUBLISHERS ASSOCIATION; NASHVILLE SONGWRITERS ASSOCIATION, INTERNATIONAL; NATIONAL ACADEMY OF RECORDING ARTS AND SCIENCES; NATIONAL MUSIC PUBLISHERS’ ASSOCIATION; RECORDING INDUSTRY ASSOCIATION OF AMERICA; RHYTHM AND BLUES FOUNDATION; SCREEN ACTORS GUILD — AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS; SESAC HOLDINGS, INC.; AND SOUNDEXCHANGE) filed joint comments to the Copyright Office detailing the failures of notice and takedown to stem the tide of infringement, and calling for fundamental reform. The biggest perceived obstacle to the development of a healthy online market? Why none other than YouTube — the very company cited by PEN as supposedly illustrative of the problems associated with over-moderation.
I think the point is clear, but I can’t resist noting that the EU recently completed a bitterly fought update of the Copyright Directive, ultimately deciding to place greater obligations on platforms to ensure that they were taking adequate steps to prevent distribution of infringing material — and the most central figure in the EU’s recognition that reform was needed was YouTube who vigorously protested against any change in the status quo. The US Congress is also revisiting the notice and takedown provisions of the DMCA, in conjunction with the Copyright Office. And just like in the EU, YouTube and the organizations that represent it, or which it funds, are pressing for retention of the status quo. Because it’s working perfectly well for them. For artists…not so much.
I will end here, because it seems as good a place as any. PEN might want to consider amending this paper — or at least the section relating to over moderation and YouTube. It makes PEN America seem out of touch with reality which undermines its important mission, and which fails to reflect the importance of copyright as an engine of free expression — of vital importance to the writers at the heart of PEN itself. This is perhaps best illustrated by reference to the comments of the Authors Guild, the nation’s oldest and largest professional organization of writers, who described the situation faced by authors: “Many authors spend hours each week tracking down pirated copies and sending takedown notices, only to see their efforts result in five new pirate sites take the place of one that was taken down. Others have given up. Meanwhile, almost all have seen drastic reduction of incomes in the last decade, with 2018 mean writing incomes for full-time professional authors down to $20,000, a 42% reduction in real dollars from a decade prior.”
YouTube is the quintessential illustration of the failure of moderation. The refusal of a platform to take adequate and responsible steps to prevent infringement, and in doing so, silencing the putative voices of artists. Ironically PEN speaks of the problems with latency as between takedown and putback, observing that “moderated content that is non-violative can remain offline for hours, days, or weeks before ultimately being restored.” In the meantime, infringing content is forever, and due to inadequate platform practices, reappears as soon as it is deleted. PEN is right that latency between harm and response thereto is a problem. They just focused on the wrong harm. Infringement is viral. Responses thereto are singular and bureaucratic. The chasm between them is where dreams perish, and voices are silenced.
