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He has enlisted allies to find and report the clips to Facebook and YouTube, filed complaints with federal regulators against the companies and recently launched a congressional campaign focused in part on holding social media platforms accountable. Yet despite those efforts, copies of the footage remain online, some with tens of thousands of views.
Over the years, Andy Parker has run into a consistent hurdle: He doesn’t own copyright of the footage, which can serve as an effective tool to force companies to remove infringing material.
Late last year, he devised a plan to get around that roadblock: He created an NFT, or non-fungible token, of the video, as I report in a new dispatch for The Washington Post.
“This is the Hail Mary,” Parker said, an “act of desperation.” Here’s why:
A simmering copyright dispute
The footage, which originally aired on CBS affiliate WDBJ, is owned by parent company Gray Television. The company has denied Parker’s requests for joint copyright ownership, instead granting him a usage license aimed at letting him work with a nonprofit to get the videos taken down.
But Parker and his advisers say the license doesn’t allow him to tap into a method frequently used by victims of violent crimes and their families to get content removed: filing copyright complaints. Without holding the copyright, he’s unlikely to win a lawsuit against the social media companies when they fail to take down clips of the murder, according to experts I spoke to for the report.
“For victims of horrific images being distributed on the Internet generally, unfortunately and inappropriately copyright does end up being an effective tool,” said Adam Massey, a partner at C.A. Goldberg, PLLC, a prominent law firm that has advised Parker.
Under existing law, only the owner or someone authorized to act on the owner’s behalf can duplicate or recreate copyrighted material. Parker argues his usage license allows him to create a duplicate as an NFT, and in turn, file complaints with tech companies when they don’t remove copies of the footage. “In lieu of co-copyright, this is the only thing that we can do,” Parker told me.
But Gray Television disputed his interpretation. “While we have provided usage licenses to third parties, those usage licenses do not and never have allowed them to turn our content into NFTs,” chief legal officer Kevin Latek said in a statement.
Parsing the platforms’ policies
Facebook and YouTube say they have taken down thousands of posts containing footage of the shooting since 2015, but there are key gaps in their policies and enforcement.
Facebook bans any videos that depict the shooting from any angle, with no exceptions, according to Jen Ridings, a spokesperson for parent company Meta. But my review found nearly 20 posts on Facebook containing a version of the murder footage on the platform.
While some had only a few hundred views, others had tens of thousands, including one with over 115,000 views and over 1,000 likes that had remained up since August 2015. Facebook removed all of the videos after they were flagged by The Post.
YouTube bans a separate version of the footage filmed by the shooter, Vester Lee Flanagan, because it goes against its policies prohibiting videos taped by the perpetrator of a violent incident, according to YouTube spokesperson Jack Malon.
But the platform doesn’t ban all versions of the WDBJ footage, in part because it wasn’t filmed by Flanagan and because, under YouTube’s interpretation, it doesn’t show the “moment of death” of the victims, Alison Parker and videographer Adam Ward. The footage cuts off as Parker is screaming and fleeing from gunfire. Ward, who filmed it, was also fatally shot.
“Footage of a violent or graphic event filmed by someone other than the perpetrator is allowed to remain on our platform so long as it doesn’t show the moment of death and contains sufficient” educational context, such as a news report, Malon said.
Gray Television contends that the WDBJ footage it owns does not depict Parker’s murder since the “video does not show the assailant or the shootings during the horrific incident,” Latek said.
How NFTs factor in
NFTs, unique pieces of digital content logged as assets using blockchain, have exploded in popularity as people have rushed to buy, sell and trade collectibles created from fine art, crude memes and even an animated version of Melania Trump’s hat. But the rush to transform the vast swath of content circulating freely online into NFTs has unearthed ownership disputes, as I report in the dispatch.
The blockchain records a permanent history of every transaction on a decentralized server, theoretically making it easy to track the ownership. Amid the buying blitz are situations like Andy Parker’s, where an NFT holder has created a duplicate, crypto-certified version of a piece of content, leaving two purported owners of the same media.
Moish Peltz, an intellectual property lawyer who specializes in blockchain, crypto and NFTs, said the digital tokens could pose unique tests for how copyright principles apply in cases with extenuating circumstances.
“We’re not rewriting copyright law here, but I do think that NFTs create a new context where there just aren’t legal decisions as to how they should apply in certain cases,” Peltz said, adding that “some edge cases … raise some interesting questions.”
Parker is hoping his situation will be one of those edge cases.
Our top tabs
Trump’s social media network appeared on the App Store, but users had trouble signing up
Truth Social catapulted to the top of the Apple App Store’s chart for downloads, but numerous users reported delays or errors in setting up their accounts on the app, Bryan Pietsch and Jeff Stein report. The app was developed by former president Donald Trump’s new media company.
“Twitter banned Trump last year from the social media platform, citing the ‘risk of further incitement of violence,’ following the Jan. 6 insurrection repeatedly encouraged by the former president,” Bryan and Jeff write.
In January, The Post reported that it could be months before Truth Social becomes fully operational. The pace of its development has frustrated Trump, three people familiar with the discussions told my colleagues at the time.
A representative for Trump’s media company, Trump Media & Technology Group, did not respond to a request for comment about the timing of the official launch of the app.
Elon Musk accused federal regulators of leaking information about Tesla investigations
Attorneys for Tesla chief executive Elon Musk escalated their feud with the Securities and Exchange Commission by accusing an SEC staff member of leaking “certain information regarding its investigation,” CNBC’s Lora Kolodny and Michael Wayland report.
“The letter comes four days after Musk initially alleged that the SEC was engaged in harassment by continually investigating him, that the agency was trying to chill his right to free speech and had neglected their duties to remit $40 million to shareholders that Tesla and Musk previously paid in fines to settle securities fraud charges,” Kolodny and Wayland write.
CNBC couldn’t reach Musk’s lawyer for comment. The SEC did not respond to CNBC’s request for comment.
U.S.-European tech council to meet in May
The mid-May meeting of the U.S.-European Union Trade and Technology Council in France will be just the second time that the council has met, Reuters reports. It previously met in Pittsburgh in September.
The council has looked at issues like supply chains, export controls and emerging technologies such as artificial intelligence. “One of its objectives is taking a more unified approach to curb the power of tech giants while another is to set standards and rules for the 21st century,” Reuters writes.
Rant and rave
Twitter responded to Truth Social's appearance on the App Store. The New York Times's Stuart A. Thompson:
The Stanford Internet Observatory's Renee DiResta and Platformer's Casey Newton:
technically having a waiting list makes truth social a publisher and thus violates section 230— Casey Newton (@CaseyNewton) February 21, 2022
Harvard Law School lecturer Evelyn Douek:
Inside the industry
- International antitrust enforcers and FTC Commissioners Noah Phillips and Christine Wilson speak at the George Mason Law Review's 25th annual antitrust symposium, which takes place this week.
- The showrunners and executive producers of “Super Pumped: The Battle for Uber” speak at a Washington Post Live event on Tuesday at 3 p.m.
- New America’s Open Technology Institute hosts an event on digital equity and spectrum auctions on Wednesday at noon.
- Colorado Attorney General Philip Weiser (D) speaks at the Berkeley Center for Law & Technology’s Privacy Law Forum at 2:20 p.m. on Thursday.
- Rep. Michael McCaul (R-Tex.), Sen. Edward J. Markey (D-Mass.) and U.S. Chief Data Scientist Denice Ross speak at the State of the Net conference Monday.
- Former president Donald Trump’s national security adviser, Robert O’Brien, speaks at a Heritage Foundation event on U.S. tech competition with China on Monday at 11 a.m.