Federal Communications Commission (FCC) Chairman Ajit Pai has made one of those “break the ‘net” videos — but not in the usual way. In an apparent effort to either pump up his base or win over undecideds, Pai made a video called “Seven Things You Can Still Do On the Internet After Net Neutrality.”
If the intent was to win over critics by showing how opponents are needlessly “fear mongering” (a favorite term thrown around by defenders of Pai’s net neutrality repeal), it backfired badly. But whatever its intent, I can say unequivocally as someone doing this for 20 years, this video is truly bizarre in the annals of FCC history for a number of reasons. While most of the attention has gone to the copyright issues or the Twitter fight between Mark Hamill and Ted Cruz, the genuinely weirdest thing about this video is that it ever got made in the first place.
So here are my picks for the Top 5 Weirdest Things About Ajit Pai’s ‘Seven Things’ Video.
1. No FCC Chairman (Or Commissioner) Has Ever Made A Video Going After His Critics Before.
The ways in which the Chair of the FCC communicates with the public and tries to sell the public on policies evolve over time. Back in ye ancient days when I first started doing telecommunications policy, FCC Chairmen generally limited themselves to boringly traditional op eds in major publications, speeches at various events (generally venues favorable to the policy being announced), and press briefings. As social media evolved, we have seen FCC Chairs and Commissioners branch out into blogging (with an official FCC blog) and Twitter.
Pai has always been aggressive pushing the envelope pushing out his message. While Pai usually limits himself to standard Tweets announcing policy, retweeting favorable tweets and links, and a smattering of his favorite pop culture items — Pai has his staff on fairly constant Twitter patrol extolling his policies and attacking critics. In addition to his embrace of social media, Pai is also famous for his love of pop culture and his constantly working pop culture references into his speeches and official FCC statements. So it’s perhaps not surprising that Pai is the first FCC Chairman (or commissioner, as far as I know) to try his hand at using online video that goes beyond sitting in a suit and talking policy. Back in May, Pai took a page out of Jimmy Kimmel’s “mean tweets” to read Tweets and comments attacking his proposed repeal of net neutrality. (You can see the video here.)
Still, watching this video, one understands why most lawyers do not go into the creative arts (David E. Kelly to the contrary). (Side bar weird fact: David E. Kelly went to the same undergrad school (Princeton) and law School (B.U.) as I did. He is, however, much, much richer. Degrees are not everything.)
2. Pai’s Videos Attack His Critics Rather Than Defend His Policies.
What’s notable in both the previous “Mean Tweets” video and the “7 Things” video is that Pai opts to aggressively attack his critics rather than simply offer a defense of his net neutrality repeal proposal. I get it that this is the standard modus operandi for the Trump Administration. It is also extremely consistent with Pai’s style since he became a Commissioner. We have plenty of examples of Pai browbeating staff and making dramatic exaggerated claims about opponents (for example, the whole “President Obama’s Plan To Regulate The Internet” schtick). Indeed, to have the man who named his rollback of net neutrality “Restoring Internet Freedom,” and accused then-FCC Chairman Tom Wheeler of imposing “price regulation” on broadband decry “fear mongering” and “meanness” by his critics gets 4 out of 5 Morissettes on the irony scale.
Still, it is noteworthy that Pai spends virtually no time in any of his video outreach messages promoting the virtues of his policy. Mind you, Pai started his roll out of the net neutrality roll back with some gratuitous insults for Free Press and fairly dramatic claims about how evil Federal agencies like the Federal Election Commission wanted to censor conservative voices on line. Again, I’ve played in the Sausage Factory long enough to recognize what has become the signature style of the Right these days — insult your opponents while pearl-clutching about the lack of civility, accuse those who criticize you of “fear mongering” while making all kinds of wild accusations (that often do not have much to do with the topic).
Given the amount of time Pai took to produce these videos, you would expect some effort to sell his policies based on their benefits. Instead, following the (admittedly successful) political wisdom of his boss President Trump, Pai opts to devote his entire video messaging at this point to throwing shade at his opponents.
3. Dances With “Cigarette Smoking Woman.“
In one scene, we see Chairman Pai doing the “Harlem Shake” with four “hip Millennials.” One, a woman with a cigarette and a black argyle sweater, has been identified in a number of outlets as Martina Markota. Markota is a video producer for Daily Caller and appears to have previously video blogged in support of the “Pizzagate” conspiracy. (For those of you who have forgotten, “Pizzagate” was a conspiracy theory pushed by the far right claiming that the Clintons and Hillary Clinton campaign manager John Podesta ran a child-sex ring out of a DC pizzeria.)
In more typical times, a video of the Chairman of the Federal Communications Commission dancing with a far right radical and purveyor of debunked conspiracy theories would be a major deal. Indeed, one can only imagine the breast-beating and pearl-clutching that would have occurred if it were discovered that then-FCC Chairman Tom Wheeler had appeared in a video with a 9/11 Truther. But in these more turbulent political times, dances with Cigarette Smoking Woman is simply another oddity adding color to an otherwise already embarrassing escapade. It does, however, highlight the extensive role of Daily Caller in apparently producing this video. Which leads us to . . .
4. The Video Was Not Only Posted On the Daily Caller Website, The Daily Caller Appears To Have Helped Create It.
Generally, when an FCC Chairman writes an op ed or opinion piece for a newspaper, the newspaper is scrupulously careful not to appear to be providing explicit aid and support for the position. Over the years, FCC Chairs have had opinion pieces appear in major dailies, and certainly FCC Chairs have, on occasion, selected news outlets with audiences they anticipate will be sympathetic to their position.
But this is the first time I can ever recall when an outlet claiming to be a news outlet (yeah, yeah, I know) actually appears to have been significantly involved with the production of an opinion piece by the Chairman of the Communications Commission. Again, if the situation were reversed, and it were a Democrat working with a progressive-leaning news outlet like the Intercept, we can only imagine the angry denunciations and accusations of violation of federal law by Republican members of Congress. (No, I can’t think of a law it violates, but since when has that stopped anyone intent on making accusations?) And yes, I get it, we long ago passed anything resembling consistency in politics about 3 exits back. So it’s not like this surprises me.
But I would hate for this departure from even the fig leaf claim of objective journalism and typical opinion piece to go unremarked — especially if this is going to become the new normal. So it is worth observing in passing that this is the first time I have ever seen a purported news outlet go well beyond softball/puff piece or even favorable editorializing to outright “here, let us help you make this video and lend you our dancing staff.”
And, in good conservative fashion, Daily Caller has spent the last few days doubling down on its bets on Pai. First was this claim that YouTube’s response to a sadly standard takedown over the “Harlem Shake” was part of an evil Google/Left Wing conspiracy to Silence The Truth, followed by wading into the Mark Hamill controversy.
Which, of course brings us to the last weird thing about this video . . . .
5. The Aftermath of the Video Highlights My Other Policy Obsession — Copyright.
So yeah, we had a notice and takedown claim around the “Harlem Shake” piece, as well as Mark Hamill pointing out that Pai didn’t pay royalties to John Williams for the Star Wars music.
I’m not going to weigh in on the “is it fair use or not” question. My colleague Meredith Rose (who knows much more about copyright than I do, I’m a telecom lawyer at heart) had this discussion over with the Verge and another conversation on the same topic with Multichannel News. Briefly, while this is the kind of political speech that clearly ought to be immune to notice-and-takedown and be regarded as fair use, the law is not so simple. Furthermore, whether a defendant in a DMCA takedown may ultimately prevail, the platform is still bound by the terms of the DMCA to take down the content on receipt of proper notice, and to put the content back up when the alleged infringer provides a counter-notice.
What I will say is that Pai’s problems here are hardly unique. Lots of people run into DMCA notice-and-takedowns for political speech. There are entire websites devoted to chronicling these problems. Nor is Pai the first politician/policymaker to run into the situation where the artist/songwriter/author utterly loathes the politician/cause trying to use the work and uses the DMCA notice and takedown process. This is exactly why the doctrine of fair use (which is not limited to parody, so there is no need to try to force Pai’s use of the Harlem Shake into parody for it to be covered as fair use) is so critically important. As the Supreme Court noted in Acuff-Rose, it will often be the case that the holder of the copyright explicitly does not want someone to make use of their work for a permitted use — which is why we have the doctrine enshrined in law.
If it is any consolation to Pai (and the Daily Caller), the MPAA and the rest of the copyright mafia feel exactly the same way about fair use as Ajit Pai feels about net neutrality. Like Pai on net neutrality, the MPAA and the copyright mafia generally make it abundantly clear on a regular basis that they regard fair use as an unwarranted government regulation of their private property, a regulatory taking, a vile interference with the market that devalues their investment, and a “solution in search of a problem” when it comes to protecting free expression, and dismiss all criticism and opposition to their maximalist positions as a combination of fear mongering and lobbying by evil Silicon Valley companies like Google and Facebook, but especially Google.
So, while I am no fan of using DMCA takedowns to stifle political speech, I gotta give Pai being subject to a DMCA takedown followed by Daily Caller whining about it 5 out of 5 Morissettes on the Irony Scale.
Stay tuned . . . .