Is Google simply above the law?

Google Shell GameIncreasingly, in the United States, the answer to that question seems to be yes.  As Exhibit A, I offer this latest anecdote from Ellen Seidler at VoxIndie, who describes the experience of one indie film distributor who found an entire film uploaded to YouTube by some smug little snot with the handle Free Movies. The film distributor had used its ContentID account to “block uploads of certain lengths in its territories,” writes Seidler, but Free Movies decided that the distribtutor doesn’t have the right the block the film in any context whatsoever.  Seidler describes the situation as follows:

S/he [Free Movies] stated the reason as being:  Approval from copyright Holder is not required.  It is fair use under copyright Law. The user also added a note: ‘I don’t need to explain.’

Despite all the testimony at last week’s roundtable about fair use–and how copyright holders seek out [sic] to punish those who claim it using malicious takedowns–it’s worth pointing out, yet again, that for every legit “fair use” claim, there are also false, and rather malicious, abuses of that defense.  It’s a fact conveniently overlooked by the anti-copyright apologists.”

YouTube restored access to the entire film (which would never ever be a fair use!), the distributor’s claim was then reinstated, and Seidler rightly points out that if Free Movies files a counter notice, that’s the end of it.  These indie filmmakers don’t have the resources to files suit in federal court, so Free Movies and YouTube can not only get away with the infringement, they can even monetize it together—earning revenue from the labor of other people.  Because freedom.

But if Google is going to support—and even encourage—this kind of behavior on its platforms, and if Congress isn’t going to fix the law to give rights holders a fighting chance, then let’s at least be honest about what this mess really is.  Google should simply instruct its users to file responses and counter notices invoking the words hocus-pocus or swordfish or expelliarmus, and then these infringing files can remain on YouTube. Because fuck you.

Why bother even bringing up a complex legal doctrine like fair use? Clearly, Google’s intent is to ensure that users like Free Movies remain wholly illiterate about the principle; and the independent creators can’t afford to go to court anyway.  I’ve argued in the past that fair use is not just an incantation that makes infringement claims go away, but maybe I’m wrong.  Because Google is apparently above the law. So, if that’s the new reality, lets be honest about it and not add insult to ignorance by pretending a legal principle is even being applied in such a case.

As Exhibit B, Conor Risch, writing for Photo District News, describes Google as “too big to sue,” even for a relatively large rights holder like Getty Images.  Ever since Google changed its Image Search format, Getty—the largest stock-photo library representing thousands of photographers around the world—has seen dramatic loss of traffic to its own pages.  Traffic that Google has effectively hijacked.

Prior to the 2013 change, Google Image Search results produced thumbnails of most photos, and when a user clicked on an individual image, he was directed the to the web page hosting that image.  But never content simply to “organize the world’s information,” Google likes to own the world’s attention in order to drive ad revenue and mine data.  So, in 2013, they changed Image Search to provide larger, high-quality images that do not link directly to the owner’s web pages. Instead added a “Go To Web Page” button, and this additional step combined with posting  high-quality images has resulted in a sharp decline in traffic to Getty’s site.

As has recently been reported, Getty is pursuing Google in the EU, where the search giant faces an ongoing and wide-ranging anti-trust investigation.  Getty views Google’s Image Search practices as implicating both copyright and anti-trust law, but even though both companies are based in the US, Getty’s avenues for relief domestically are presently very narrow.  After extensive investigation into the practices of the search giant, the US Federal Trade Commission voted unanimously in 2012 not to pursue Google.  This is in dramatic contrast to the European Commission, which may be about to impose a record-breaking fine on Google for “anti-competitive search practices,” reports Andrew Orlowski for The Register. With regard to bringing a copyright infringement claim against Google, Getty’s General Counsel Yoko Miyashita states, the search giant would simply “wipe us out from a cash perspective” by dragging out the case for years.

Where the copyright and anti-trust issues converge is when the company that is too big to sue is also the company that is too big to ignore. As Miyashita explains in the Risch article, “Are there copyright issues? Yes. But the problem is not just copyright. It’s their market dominance and their position in search where they can circumvent any of the copyright protections that legislatures or courts may provide.”

By way of example, Miyashita cites legislation passed in Germany and Spain that was designed to protect news publishers in those countries by requiring compensation for Google’s use of news snippets. Google’s response?  De-indexing those publications from its search engine—a practice that Google’s own spokespeople and attorneys will typically claim “chills free speech” whenever a plaintiff seeks an injunction to de-index links or sites that are clearly infringing intellectual property or violating privacy.  The same company that will insist that access to the web is a universal and inviolable civil right will gladly remove entities from its near-monopoly search engine when it has a buisness interest in doing so.

Technically, even under the DMCA as it is written, the above-mentioned FreeMovies is supposed to lose his/her YouTube account as a repeat infringer.  But no.  Such a remedy is labeled as “censorship” by Google and its Kool-Aid drinking buddies at EFF, et al. But it’s okay to remove news organizations from search when it serves Google’s bottom line.  Again, if this is how things are, if Google is simply above the law, then let’s abandon the nuanced language of law altogether.  Let’s just say it’s Google’s internet and they can do whatever the hell they want with it.

Posted in Digital Culture, Law & Policy | Tagged , , , , , , | 5 Comments

Stay Down Provision Will Not “Entrench” YouTube Dominance

This is an argument that’s been around for quite a while.  I first stumbled upon it in 2013, found it again in the recently published report by Berkeley and Columbia researchers, and I understand it came up again in round-table discussions held last week at the 9th Circuit Court of Appeals regarding Section 512 of the DMCA.  The premise is this:  that if rights holders demand a takedown provision, and this in turn requires technological measures to achieve, then such measures will entrench the dominant market positions of sites like YouTube because only giant companies will be able to afford to deploy these technologies.  It sounds like a reasonable concern as long as we ignore the realities of the networked economy.

YT GorillaYouTube’s dominance is created by market forces and the general tendency of a networked economy to foster monopolies.  As discussed several times on this blog, and in numerous articles from multiple other sources, it’s a natural function of the digital market to shrink competition in certain lines of business.  Once a platform acheives critical mass and offers a service like social video, there is not only no particular need for consumers to seek a competitior, there are clear disadvanages to choosing a competitor.  For instance, one can host video on a service like Vimeo, which offers many great features, but if one needs to drive traffic and improve SEO, there really is no substitute for YouTube, especially because of the way in which the platform is intertwined with Google’s dominant position in global search.

These are market factors that have no direct relationship with provisions like YouTube’s Content ID or other copyright compliance (or lack thereof) policies and technical measures.  If anything, it is astonishing that self-proclaimed public advocates can pretend to be criticizing YouTube in this regard when it is that company’s bad-faith application of DMCA in the first place which enabled it to gain the monopoly position it now enjoys. YouTube brazenly acquired its marketshare with an infringe-now/sort-it-out-later strategy; and now its representatives, in the guise of defending competition, have the nerve to suggest that technical measures to achieve stay down will only “entrench” this ill-gotten dominance. So, if we’re going to debate any technical measures that may be required for a YouTube-size OSP to fulfill a stay down provision, that discussion should only proceed based on an honest appraisal as to why certain OSPs are already monopolistic and may remain so regardless of any new requirements to protect rights holders.

Additionally—and I’ve raised this issue before—we saw in BMG v COX that new technical measures are not the only approach to acheiving better compliance with the intent of DMCA safe harbor provisions.  As the law stands today, in order to maintain the safe harbor shield, an OSP must meet certain condions, and among these is the maintenance of a policy whereby a repeat infringer will ultimately lose his or her account with the OSP.  But ever since passage of the DMCA, OSPs, bloggers, pundits, and organizations like the EFF have been playing a semantic shell game with rhetoric like What is a repeat infringer? And while it is true that the DMCA does not specify the exact terms of a repeat infringer policy, the details revealed in BMG v COX demonstrate just how absurdly “good faith” can be abused by a service provider.

As described in a previous post, COX’s “repeat infringer” policy was what we might call Fourteen Strikes and You Get a Very Stern Warning.  As a result of this clearly insufficient policy, the judge in the case rather sternly rejected COX’s initial safe harbor defense and allowed the trial to proceed, in which BMG ultimately prevailed.  The reason I bring up COX is that the failure of DMCA to protect rights holders in this instance does not implicate new technical measures at all. Instead, COX suggests that the language of the law is too broad and can, therefore, be willfully misinterpreted by an OSP as to undermine the intent of DMCA.  BMG had to go to court to demonstrate that COX was not anywhere close to meeting its obligations to provisions that were meant to be a compromise measure designed to avoid litigation in the first place.  COX itself does not concern a stay down provision for an individual file, but the repeat-infringer issue, it seems, may be viewed as a parallel subject for proposed statutory revision.

And so the circumstance we have now—especially the story that leaks out into the public dialogue—is a double-lie.  Part one is that new technological measures are the only way to mitigate repeat infringement of individual files or by individual users; and part two is that these technical measures can only “entrench” monopoly OSPs despite all evidence that these monopolies may persist due to market forces.  As policy-makers consider revision of Section 512, I believe it is worth noting the fundamental dishonesty of these arguments and to ask why, after so many years, they remain lead talking points of the internet industry.

Posted in Law & Policy | 1 Comment

Fight for the Future Naive About King “Dream” Speech

FFTF Dream Screen Shot

I have a dream that one day my children will be judged not by the content of their character, but by the content they can steal.  

So, my friend David Lowery, on his blog The Trichordist, has been taking the organization Fight for the Future to task lately, and he most recently caught the organization in a lie related to DMCA  takedown and their defiant upload of Martin Luther King’s “I Have a Dream” speech to YouTube. Back in 2013, to celebrate the  first anniversary of the defeat of SOPA, FFTF posted the “Dream” speech to YouTube in direct violation of the King estate’s copyright in the work; and the group told people to share the clip in what they called a “small act of civil disobedience.”  Small indeed. It’s bad enough to conflate the whinging, privileged, and corporate-backed “fight” against SOPA with the deadly labors of Dr. King, but there’s something even more insidiously galling about this whole MLK/copyright conflict that Fight for the Future and their ilk really don’t understand.  And maybe it’s because they grew up in a world of sound bites.

Since roughly five minutes after the Constitution was ratified, this country has been trying to live up to its own ideals, and getting there—and we’re not there—has taken decades and cost many brave people their lives.  In that speech on the steps of the Lincoln Memorial, King is demanding that America be true to its principles when he invokes the Declaration’s all men are created equal.  Those words are Jefferson’s preface to citing the natural rights of Man, which Jefferson cribbed from John Locke, whence comes the idea that the fruits of one’s labor are a civil right.  King’s enormous contribution is a part of that continuum—a history of struggle for the value of the individual voice to vote to speak to protest and to enjoy the fruits of his or her labor on equal footing with all other citizens.  And that last principle is why the intellectual property clause exists in the Constitution in the first place.

Yes, Dr. King is a big part of America’s struggle toward its best intentions, but it isn’t just a story about prejudice against race or sex or identity; it’s a story about the value of the individual and his or her right to pursue happiness.  Hence labor rights are invariably a central component of every civil rights battle ever fought—from literal slavery to the workers’ rights of the early 20th century to ongoing demands for equal work opportunities for women.  When Martin Luther King was murdered in Memphis on April 4, 1968, he was there to protest the exploitation of city garbage workers.  Even the “Dream” speech itself was part of a march called “The March on Washington for Jobs and Freedom.”  The value of the individual’s labor is a cornerstone of civil rights; and what these featherweight activists at Fight for the Future completely fail to realize is that intellectual property rights are a significant expression—in fact the first legal expression in this country—of that fundamental principle

Meanwhile, the free speech we enjoy—the free speech groups like FFTF believe is threatened by the King family’s copyrights—owes a great deal to the courage of King and his followers.  In the 1964 case of New York Times Co. v Sullivan, Alabama courts upheld a libel claim against the Times for publishing an ad called Heed Their Rising Voices in support of the King-led marches in the South.  The city commissioner of Montogomery L.B. Sullivan sued over the negative portrayal of his police department, and had the US Supreme Court not overturned key precedents in the lower court rulings, then the power of newspapers and public advocates to criticize elected officials and government agencies would likely have been diluted for many years to follow.  So, even with regard to free speech itself, all this digital-age dithering over a work that is widely and affordably available is a little pathetic in context to the history in which these people are dabbling.  (Coincidentally, I watched the “I Have a Dream Speech” last night, for the zillionth time in my life, as part of Episode 5 of the CNN-produced series The Sixties, now streaming on Netflix.)

So, yeah, we can debate the practical application of copyright, discuss whether or not a particular work should remain protected and for how long.  But when a bunch of privileged, 21st-century kids (backed by very wealthy corporations, I might add) declare, from the comfort of their keyboards, that the emancipation of Dr. King’s speech from the “chains of copyright” is somehow a fight for civil rights, I propse that FFTF should change its acronym to STFU.  This is especially true when their idea of a “moral responsibility to disobey unjust laws” means in this case to serve King up to corporate masters so his legacy can rightly become their property to monetize rather than his family’s.

My generation grew up with Dr. King’s words as part of our consciousness, miraculously without the aid of YouTube or the internet.  In fact, it’s noteworthy that the limited scope of access in the 1960s probably played a significant role in accelerating the progress of particularly the Voting Rights Act.  Because the first wave of Selma marchers had the unbelievable guts to walk unarmed into a mob of cops and goons brandishing knightsticks, pipes, and barbed-wire-wrapped clubs, and because the enitre nation was limited to just a few TV networks, it meant that tens of millions of citizens simultaneously watched—in a sense were forced to watch—the sight of innocent people being mauled. So, our new world of abundance isn’t always the potent, connective tissue we think it is.

Probably the most telling irony in this story is that by spending so much energy and corporate money fussing about the copyright on Dr. King’s “I Have a Dream” speech, the folks at Fight for the Future demonstrate that they don’t really seem to understand the speech at all.  They demand access on principle but learn nothing about the work itself.  And if that isn’t the lie of the digital utopia writ large, I don’t know what is.

Posted in Copyright, Digital Culture | Tagged , , | 2 Comments

Democracy Officially Improved by Information Age

FB 1800

With the inevitability of Donald Trump’s nomination as the GOP candidate for president, I think we can officially declare the “information revolution” a rollicking success, don’t you?  When the savants and silicon pioneers of the 80s and 90s predicted that the Information Superhighway would be a great leap forward for democracy, I don’t remember anyone intimating that we would ride that highway to the demolition derby that American politics have since become. The unlikely, populist rise of an arrogant billionaire, whose monosyllabic campaign is textbook authoritarianism, is merely the latest extreme example, which suggests that information is utter bullshit.  Without context, without reason, without compassion and empathy, information is meaningless no matter how much its volume or speed of delivery may increase. Rarely, in all the theater of our post-internet politics, can it be said that Americans have been splashing about in the tide pools of ideas any more than we were 200 years ago, when information moved at the speed of the printing press and horse.

The image above refers to the highly-contentious campaign between Federalist John Adams and Republican Thomas Jefferson in 1800, in which the factions supporting these two founding fathers slung ugly at one another in ways that would have made shareholders at CNN wet themselves with pure Cristal.  Donald Trump’s circus of vitriol is amateur hour compared even to the pundits of 1800.  As one writer for the Connecticut Courant wrote of Jefferson, whose deism was the focus of many a Federalist concern, …

Look at your houses, your parents, your wives, and your children.  Are you prepared to see your dwellings in flames, hoary hairs bathed in blood, female chastity violated, or children writhing on the pike and the halbert?

That’s the real stuff right there.  All Trump did to launch his campaign was insult every hispanic on earth.  But in 1800, the villain who was going to see to it that your women were violated and your children murdered was none other than the author of the Declaration of Independence himself. And according to the book Presidential Campaigns by Paul F. Boller, Jr., whence these stories come, a Connecticut woman really did try to hide her family Bible with a Jeffersonian friend for fear that the new president’s goons would soon be coming to confiscate and destroy it—her logic being that, “They’ll never think of looking in the house of a Democrat* for a Bible!” (Sounds like a theme we’ve heard for the past eight years regarding Obama and guns, no?)

Jefferson’s views remain central to the ongoing, constitutional debate on the separation between religion and state—a passionate argument that still produces behaviors as preposterous—if not more preposterous—as the woman hiding her Bible from the president.  American Christians in 1800 were apt to believe that Jefferson would end religion altogether in the United States—a falsehood that was largely manufactured by the Federalist party and Christian leaders, who relentlessly blasted Jefferson’s supposed atheism.  And Jefferson was not above firing back with some exaggeration himself, arguing that if, as magistrate, he were to declare national days of thanksgiving and fasts (as Adams and Washington had done), that the nation might as well reverse the revolution and return to rule by the English monarch, who was literally the head of the national church.  The separation issue, for Jefferson, was central to the rationale for republicanism itself—an idea not without historic merit, but a nuance lost amid the emotions of the public.

It had been less than a decade since the ratification of the Bill of Rights, and the realities of governance had already divided the heroes of the revolution and framers of the Constitution into snarling factions.  And though there was real animosity in many cases (e.g. the Federalist Hamilton hated Adams’s handling of the presidency), the public perception of the candidates’ true beliefs and ideas was as distorted by emotion and as exploited by the opposition as it is today. And these were the dudes who invented the country! Had there been Twitter and Facebook—had information moved as fast then as it does now, it is conceivable that the new and tenuous republic—which had not yet tested most of its constitutional principles—might not have withstood the heavy onslaught of utter nonsense that today aggregates so much empty-headed outrage into tangible political forces.

In getting to the real question, though, as to whether the internet has been good or bad for democracy, it’s hard to deny that it has certainly made what was already bad considerably more effective, which was never openly imagined in the ebullient, early days of the digital revolution.  It seems pretty clear now that groups and individuals who were previously and properly relegated to the “lunatic fringe” have coalesced via networked communications into bodies of political force that draw completely new—yet generally regressive—boundaries of political ideology.

The downside of “democratizing” the dissemination of information is that anybody gets to play and that anybody really does mean anybody. And because it is the nature of the internet to connect people to the information they want to know and then connect like-minded people to one another, we might have expected that the lunatic fringes of both the left and right would congregate at either end of the pole and give rise to new political factions among digital natives—factions that cannot properly be defined as classically liberal or conservative, democrat or republican.   And they like it that way.

Among the extreme left, we have the social justice warrior types—the ones who see micro-aggressions in every interaction, demand safe spaces on college campuses, refuse to read assigned classics they find “triggering,” and who use terms like cultural appropriation and patriarchy as excuses for disengagement while claiming to respect diversity. They are insufferable people, who have managed to use the privilege of their educational opportunities to invent new forms of cultural segregation, beginning with mandatory self-flagellation by all white, heterosexual males.  Naturally, the SJWs, as they are called, are an internet phenomenon; and their antagonists, the alt-right, also found one another in cyberspace.  Both sides have grown up expressing their political sensibilities in the intolerant lingo of Trollish; and the one aspect they seem to have in common is tribalism. Their sublimation of the individual for the sake of the hive is unquestionably a reflection of their digital nativity, and it is a quality that confounds sensibilities among both democrats and republicans for its inherent un-Americanness.

Jack Hunter, a conservative writing for The Daily Beast about the alt-right, describes a foggy space between troll-like behavior reacting to the identity politics of the social justice warriors and the extent to which that rhetoric inevitably finds kinship with honestly-meant white-supremacist views. Hunter writes, “ … the heart of alt-right tribalism leads to something that is definitively anti-libertarian and functionally authoritarian. The alt-right is characterized by an extreme collectivism that is unavoidably racist.”

When Donald Trump declares without a hint of nuance that, “PC in this country has gone too far,” he successfully rallies both the troll and the real racist to his brand of intolerance. In many ways, Trump’s nationalist theatrics are a thuggish version of the optimistic and reactionary campaign run by Ronald Reagan in 1980—invoking a nostalgia for an idyllic America that never existed–unless one views as utopian the kind of innocence that would play in the fog of DDT trucks, picnic at the edge of nuclear test blast zones, and demand that the races and sexes remain neatly organized into their “rightful places.” But the important shift in tone from affable Reagan to boorish Trump brings groups like the KKK, Neo-Nazis, and the openly racist alt-right out of the shadows and into the mainstream of national debate. Meanwhile, the Bernie-or-Bust crowd—many who would be voting for the first or second time—seem to have decided that if we cannot attain a new socialist utopia in the next four years, they’re just going to pack it in.

Certainly, there are many interrelated and complex reasons why our politics are the way they are, why they have always been this way. In a sense, I suppose we have to admit that the digital revolution has been “good for democracy” to the extent that vox populi is louder than ever.  Whether or not the voice is saying anything we can call progress is whole other question.


*The Republican Party of Jefferson would later become the Democratic Party, but it was common to use the term in general discussion prior to the official change.

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An Alternate History for Music, YouTube, & Everything Else

Photo by pkorbel
Photo by pkorbel

Take all the best qualities of the web and imagine for a moment that the boundaries of intellectual property ownership are respected and upheld–at least on the major, legal platforms.  Imagine, for instance, that YouTube still exists, but that one would not have typically used the platform to stream an unlicensed recording of a popular song by a popular artist.  Instead, in this alternate history, the artists’ individual websites developed as the only places where users could stream tracks, read lyrics, and even share tracks via social media.  Meanwhile, YouTube could still have evolved as a platform for original expression, including parodies and covers of popular songs, most of which would likely be left alone by the rights holders, just as they are now.

Of course, it’s hard to imagine YouTube having grown without its infringe-first/settle-later strategy, conveniently protected by flaws in the DMCA; but as long as I’m projecting a hypothetical, I ask readers to imagine what we might have gained or lost if the market had developed just a little differently in this regard.  YouTube was able to use the leverage of mass infringement in order to grow market share and turn the platform into a default destination for streaming music, but that’s not the only way this history had to unfold. If YouTube had never been able to—or had chosen not to—host millions of unlicensed, user-uploaded songs; and if the default user habit had instead been to first visit the artist website to do all the things they now use YouTube for, what would be lost for the fan?  I would argue nothing.  On the other hand, what would probably be gained is a more interesting, more diverse, and more entrepreneurial digital market for music makers and listeners alike.

Right now, if you visit a major star’s website, you probably won’t find full tracks to stream or share via Facebook, etc.  But if the artist site had an exclusive, if the millions of user-uploaded streams on YouTube alone were no longer part of the equation, I bet most artists would probably have begun to recognize the incentives to make streams available on their own sites.  Google could still sell advertising in this paradigm, except that the artists themselves (gasp) would have a stronger voice in negotiating terms because they would not be held hostage by the rock-and-hard-place deal in the YouTube model.

Even if we look at a fairly small band, like The Felice Brothers, who are popular local artists in the Hudson Valley where I live, this model could theoretically apply.  Their top ten tracks on YouTube have generated about 1.3 million total plays.  That’s not Taylor Swift or Adele territory, but if that traffic were driven exclusively to the band’s website, would it be worth it to the artists to provide streams, lyrics, and sharing embeds for social media?  Certainly it seems that capturing that traffic could not be worth less than the ancillary (or shared) value the band gets via the YouTube platform; and it could easily be worth considerably more simply because the fan would likely have a more in-depth engagement via the official website.

At the same time, Google could do its thing, like recommend other artists based on your liking The Felice Brothers, and it can even monetize that piece of the transaction without actually having to “own” the experience that rightly belongs to the artists.  That would be less attractive to Google and its shareholders, I’m sure, but we’re talking user/creator experience here, not revenues for one huge company.

As I say, I believe user experience overall could be much richer than it is.  Imagine a teenager wants to hear a new song a friend played for her, but she doesn’t remember who the artist is or even the correct title of the song.  This is, of course, where Google makes her young life better than ours was; its page rank algorithm helps her (even though she only knows a few terms) find the artist’s website in a matter of seconds. Here, she is not only able to listen to the song she had in mind, but she’s also more inclined to learn something about the artist(s), more likely to explore other tracks, share music she finds on social media, read lyrics etc., and begin to discover how big a fan/consumer she will become.  Just finding a copy of a song that some other fan uploaded to YouTube doesn’t really offer much of a relationship at all for the prospective new fan.

The point is that, technically, all of the best features for both artists and fans could still exist in an online market in which YouTube is exclusively the platform it claims to be—a place for original expression—rather than the platform it is—a place for original expression and massive infringement of popular creative works.  And I think this is more or less how many of us in the 1990s imagined the web might evolve—as a more diverse market for entrepreneurism rather than a consolidated market with a few dominant platforms that figured out how to commandeer the relationship between a fan and creator, and then sell that relationship back to both parties by converting the transaction into ad sales.

Of course, after acquiring all the traffic that may otherwise have gone to the artists’ individual sites, YouTube was then able to position itself as indispensable and, therefore, free to dictate–and change–terms at will.  Even the revenue-sharing program through Content ID was only introduced after YouTube had cornered substantial market share by means of user-generated infringement shielded by the DMCA.  And based on comments from both entertainment attorneys and independent musical artists I know, Content ID may best be described as a mercurial and inscrutable arrangement for smaller creators and/or a tool used to leverage the platform’s ill-gotten market share to make a take-it-or-leave it “deal” with the majors.  Yet, for all the ways the YouTube platform siphoned off financial value and weakened bargaining power for may types of music creators, it’s not at all clear that we fans really needed the platform in order to enjoy exactly the same experiences we could have in a more diverse market distributed across multiple sites.

There may be no going back, of course; but in the larger dialogue about issues like YouTube’s extraordinary leverage with creative artists and the extent to which the DMCA provides cover for the predatory, winner-take-all nature of these platforms, I think it’s important to remember that the way things are is not necessarily the way they had to be–or have to remain. This is, in fact, one of the underlying themes running through every criticism I’ve read by Jaron Lanier, formerly one of the leading architects of these systems, but who now consistently argues that the web we have is engineered backwards—so that humans serve the computers rather the the other way around. And rather than think of the the design of Web 2.0 as having been inevitable—as technologically deterministic—that it in fact functions exactly as humans coded it to function.  As such, it is not entirely impossible or unreasonable to imagine how it might be better.

Posted in Digital Culture | Tagged , | 19 Comments