All Content Creators Should Watch Porn

Yeah, that was a shameless use of a headline with a hook; but since you took the bait, here’s the switch. I don’t literally mean to say that all content creators need to watch pornography (that’s up to them), but I do mean that professional content creators might want to look at a business dynamic that has occurred in the porn industry. It’s technically legal. It’s reminiscent of the YouTube business model. And it produces exactly the opposite result creators have hoped would be made possible by the Internet.

Let’s review …

Both content producers and digital-age optimists will repeat the premise that the Internet is a catalyst for democratization. In theory, a creator of anything can manage her own destiny because traditional “gatekeepers” no longer hold the only keys to distribution. And it is true that we can all self-publish just like I’m doing now with this blog. But when produced works are popular enough to be the foundation of a business, the prospect of independent entrepreneurism can become an irrelevant technicality in contrast to the market forces and practices that foster financial success on the Web. I have proposed in other posts that democratization for small and mid-sized producers may be illusory because the same cheap means of distribution available to authors of works also provide the mechanisms for predatory companies to exert monopolistic control over an entire industry. It all begins with piracy driving down value, lowering wages, shrinking markets, and even limiting creativity in certain media and genres.

But what happened to porn?

Needless to say, “free” porn abounds on the Internet, and most of the video content is hosted on sites known generically as “tube sites” for the way they mimic YouTube, including enabling users to upload video clips. (And in this context, we’re only comparing clips uploaded to YouTube by users who do not have rights to the material.) But the similarities between these tube sites and YouTube are not merely technological. Historically, at least some of the material hosted on porn tube sites is there by permission, a collection of older clips that had exhausted their primary release windows and were used to drive traffic, primarily to paid subscription sites. In fact, the presence of ads linking to producer/distributors might give any viewer the impression that the tube site is a by-permission enterprise designed by “the industry” to use limited free clips as loss-leaders to sell subscriptions to newer and “premium” material. And this is true — or truish. Because what isn’t apparent to the user is that the lion’s share of the tube sites and the producing entities behind those banner ads are all owned by just one company, today called MindGeek, previously called Manwin. As porn star, entrepreneur, and occasional writer Stoya explains on her blog, Manwin first consolidated the major tube sites and then …

“ … used their traffic to sell ad space to those same production companies they enabled theft from. Production companies paid a lot for banners. Manwin then began buying the companies they had helped devalue, including Digital Playground—the company I was contracted to for a number of years. I believe the worst sorts of capitalists would consider Manwin’s behavior a win of the highest order.”

Naturally, any site that allows users to upload clips, will “unintentioinally” host infringing material, just like YouTube does millions of times each day. And just like YouTube, these sites remain within legal boundaries thanks to safe harbors in the DMCA and because they will comply with takedown notices (though not necessarily with any haste) sent by rights holders. When discussing this particular dynamic in the non-porn world of content, the debate usually becomes somewhat academic, with one side saying that the DMCA is outdated and useless for rights holders and the other side arguing some variation on the theme that “site owners can’t police the Internet” and the DMCA is sacrosanct because it protects free speech. But setting aside the theoretical legal debate, the business reality enabled by these dynamics created a monopoly. At present, as I understand it, most of the performers and performer/producers in the U.S. porn industry have contracts with this one company. David Auerbach, writing for Slate, says the following:

“MindGeek has become the porn monopoly, putting industry members in the paradoxical position of working for the very company that profits from the piracy of their work. The MindGeek hydra exerts so much force that people in the online-porn industry are scared to talk about it for fear of blacklisting. And MindGeek’s dominance should serve as a cautionary tale of the dangers of consolidating production and distribution in a single monopolistic owner.”

Creators of all stripes should notice that MindGeek, even though it now has an interest in paid subscription sites, does not take down its own tube sites which regularly infringe its own works. And if anyone thinks this is about high-minded populist ideas like “sharing” or “cultural diffusion,” pass me that pipe because this is just hardball business; it’s how monopolies are made. It may seem counter-intuitive to own a distribution franchise that infringes one’s own production franchise, but as the monopoly that owns the whole shebang (wrong word choice here?), MindGeek makes money from all revenue streams and can use “self-piracy” to exert downward pressure on wages or fees paid to contractors producing the work. Put another way, any producer/distributor in such a position can use infringing even its own works as a check valve against market value increasing to the point where it has to pay performers or labor higher wages. It’s a bit like Rockefeller owning the ore mine and the shipping company that carried the ore. To quote Auerbach again:

“ … industry workers have been in the difficult situation of seeing their work pirated on sites owned by the same company that pays them—imagine if Warner Brothers also owned the Pirate Bay.”

One need not expend much imagination there as Internet companies continue to enter the production business. What content creators need to understand is that MindGeek was able to attain its monopoly status by employing very similar tactics used by YouTube. Because in the time it takes a site owner to comply with thousands or even millions of takedowns, two important things are happening: 1) the site owner builds a pile of working capital; and 2) the market value of the material in question is driven down. Thus, thanks to outdated remedies and safe-harbors in the DMCA, a site owner with enough scale and capital is poised to first drive the value of works down and then take the next logical step to become an owner, or the owner, of production. And right there is why a frisson goes up my spine every time some well-meaning indie artist says the Internet is the future of production. “The distributor doesn’t necessarily need to make content that generates adequate money for the content producers, as long as it generates money somehow,” writes David Auerbach. And that is the economic model that becomes an existential threat to creators no matter what other debate we want to have about copyright law, free speech, or certainly how anyone feels about pornography.

Now, because pornography lends itself to being exploited in unique ways (e.g. by spammers), it is necessary to make clear that the manner in which porn tube sites play shell game with DMCA are different and seem to be more complexly insidious than the way YouTube does it. For instance, I spoke to Nate Glass, founder of TakedownPiracy.com, who offers the following example:

“Unlike YouTube, when Mindgeek suspends your account, they don’t remove all of the videos uploaded by that person. They just move all your other videos into their in-house ‘Unknown’ account so the videos can still generate them ad dollars. You can only imagine how inviting this is for spammers who use pirated video to promote their stupid ‘enlarge your penis overnight’ garbage.”

As stated, it is technically true that a creator of works is able to self-produce, self-promote, self-distribute, and generate revenue directly from her/his fans. In theory, this should produce a diversity of works, linking fans with their individual tastes; and as is so often the case, pornography appears to be in the vanguard testing this theory. Recently, Stoya and her partners launched an independent, pay-per-scene, site called TrenchcoatX. Offering specific styles of “curated smut,” as the site says, customers can buy short films or episodes for $3.99 each. By all appearances, TrenchcoatX contains the basic elements of the model people are referring to when they talk about democratization in the digital age. But whether or not this model can compete with free content on actual pirate sites or free content on tube sites that play fast-and-loose with infringement is another matter.

In the blog post cited above, Stoya offers her own perspectives on unlicensed use of her material, saying she’d prefer people use torrents than tube sites and is mostly okay with “sharing” her works if they’re attributed and not monetized. That’s for her to decide just as it is for any owner of any material. I understand where Stoya is coming from, though she may be overlooking the presence of traditional piracy as an underlying force giving the tube sites leverage in the first place. It is exactly the same force that puts Spotify and Pandora in a strong negotiating position when offering abysmal rates to creators of musical works. Ditto YouTube’s Music Key deal.

But this article isn’t about railing against piracy or MindGeek or even YouTube per se. What’s intriguing to me about the porn industry story is that by the early 1990s, it seems the industry had transformed from a highly-exploitative, male-dominated business into a more diverse, entrepreneurial, and woman-shared (if not led) enterprise. And it is certainly interesting, to say nothing of disconcerting, that the only catalyst required to swing the pendulum from entrepreneurial to monopolistic was the so-called democratizing power of the Internet.

Posted in Digital Culture, Economics | Tagged , , | 15 Comments

So, what’s a copyright maximalist anyway?

I think it was just a matter of hours after my first article appeared criticizing piracy and the anti-SOPA campaign that I was called a “copyright maximalist.”  I had never heard the term, but suddenly and without any induction process, I was anticipating membership in this secret society. It’s been about three years now, and despite keeping daily vigil by the mailbox, no decoder ring has yet been delivered. I am now suspicious that the American League of Copyright Maximalists may be a myth that originated somewhere in cyberspace.

No, copyright maximalism is not associated with an organization but instead describes a point of view that is supposedly pervasive enough to warrant the chronic and casual use of the term by pundits like Mike Masnick at Techdirt.  Exactly what defines a maximalist, however, is unclear.  In the artistic sense, of course, maximalism is simply the opposite of minimalism.  John Cage is minimalist, Wagner is maximalist.  But in a political or ideological context, a maximalist is an extremist, like a religious extremist, who is so convinced of his own righteousness that he would use radical, draconian, or even violent means to enforce his view on the world.  In this sense, there may be copyright maximalists out there, but if extreme agendas are the identifying quality, I can’t say I’ve met any of these creatures yet.  Yes, we’ve seen some maximalist theater related to copyright, like Jack Valenti’s now dogeared quote about the VCR, and there’s a reason that old anecdote keeps getting recycled — because in the real world of policy-influencing debate, one would be hard pressed to find copyright supporters proposing terribly extreme views on the subject.

Take the recent ruling in the “Blurred Lines” case.  I recommend sources other than this blog for legal analysis, but all of the experts I know, either on copyright or music or both, generally view that outcome as flawed.  Without getting too granular about (and frankly screwing up) the particulars in the case, the general idea I get from all my copyright and music colleagues is that the ruling errs due to failure to distinguish between similarity and actual infringement on the elements of the original work that are protected by copyrights.  Again, if you want specifics, I suggest this post on IPBreakdown.com by Rick Sanders, but the point I want to make here is that my fellow “maximalists” actually would advocate a far more narrow read of copyright law with regard to “Blurred Lines,” and this is consistent with the views I have encountered over the past few years. Meanwhile, as the anti-copyright blogosphere goes berserk about this case, forecasting slippery slopes and a further broadening of powers granted to rights holders, one should ask who really has the radical, or maximalist, agenda here?

Of course, it’s always easy to label someone an extremist, if you move the bar for moderate in the opposite and extreme direction. And with regard to copyright, this is what seems to have happened correspondent with the evolution of the Internet.  It is right that we should revisit the legal framework of copyright in the context of these technologies, but does that mean the only moderate and rational agenda must exclusively limit copyright across the board? Are all other views maximalist?  Is it not obvious that digital technology creates both new threats and new opportunities and that any sensible legal framework should remedy the former while nurturing the latter?  Or is that the raving proposal of an extremist?

On the other hand, nearly everything in our politics is black and white now, all written in the vernacular of extremes and organized into tidy, associative categories. In fact, I was visiting my best friend over this past weekend, and he very understandably assumed that I would confirm his assumption that the copyright community I know would see the “Blurred Lines” decision as a “win for our side.”  He was surprised when I told him how many copyright supporters disagree with the ruling; but it really shouldn’t be surprising because people immersed in the complexities of any system rarely have blunt and unilateral views. It’s invariably more nuanced.

Similarly, at a dinner a few weeks ago, I found myself talking to a couple of political conservatives, and one of them was actually surprised to learn that we had the same point of view one particular issue.  It’s unfortunate that this should be so shocking, and it suggests to me anyway the degree to which political divisiveness is manufactured and fed by all media and why it appears only to be getting worse in the digital age.  There is always opportunity for a would-be ringmaster in the circus of divisiveness, and social media are like clown cars that supply an endless stream of validation for our assumptions.

So, all that said, I really have no idea what a copyright maximalist is other than a careless pejorative to describe anyone who openly supports copyright.  If I am a maximalist, then the copyright holy war is doomed because I am not nearly versed enough in the scripture to propose any radical interpretations of it. Surely none that anyone would listen to. I don’t know.  Maybe there’s another way to talk about these things.

Posted in Copyright | Tagged | 93 Comments

The Care & Feeding of Digital Natives

On the day my first child was born in New York City in 1993, my wife told me she was kept awake that night by all the sirens.  These wails that most New Yorkers instinctively ignore suddenly had new meaning; they became a chorus singing the refrain of all the terrible things that can happen to a person.  I suspect most new parents are familiar with this initial moment of terror, the foreverness of the child;  and it doesn’t take long to see a future when you will not always be there to protect him from the hazardous world, or even from himself.  It is a very brief interval between embracing a newborn and the realization that your whole job as a parent will be a strategically organized process of letting go.  And when the hopes and fears that come with that understanding collide with the riot of theories, advice, toys, foods, classes, and gadgets all promising to help give one’s children competitive advantages in life, contemporary parents can become paralyzed by the anxiety that they’re doing everything wrong or militant in their confidence that they are doing everything right.

While that baby was just beginning to crawl around the apartment, a new sound, less melodious than sirens, was added to our lives.  The dial-up modem I’d bought squealed and scratched out its staticky attempts to connect to AmericaOnline. After several loud and dissonant failures, my wife asked what the hell I was doing.  “Trying to get online,” I said.

“Why?” she asked.

“I don’t know yet,” I replied.  And maybe I’m still trying to answer that question. But no matter what, the boy on the floor and the siblings who followed would be identified in the lingo of marketing and demographics as “digital natives,” and we were their parents.

With each new development in the range of products, apps, games, and content, comes a smattering of editorials asking the same fundamental  questions about how to monitor and/or regulate the role of technology in the lives of our children.  These articles typically focus on topics like Internet safety for teens or limits on “screen time” for younger children; and nearly all the articles I’ve read in this vein cite statistics indicating that parents of digital natives are not nearly involved enough in their children’s digital lives.  This is probably true, though there are so many factors that affect parental involvement in any aspect of their kids’ lives that I’m not going to open that can of sociological worms in this article.

Of course, we not only have to deal with the matter of our kids’ use of technologies, but also our own use, especially any technologies through which we interact with our kids.  As mentioned, we parents have been bombarded with “new” ideas in childcare for over 20 years, and it can be a little crazy-making. And for all the stereotypes about millennials appended to their devices, we Gen-Xers ought to cop to the fact that we were the early adopters of all these gadgets we then handed to our children.  It’s our parents who still have AOL email accounts, who raised us in a world without bike helmets and who had one book by a guy named Spock (not that Spock) on the subject of childcare. We new parents of the late 80s and early 90s have been the consumers of billions of dollars in “solutions” to make our kids smarter, stronger, and just get them into a damned NYC pre-school.  So, when it comes to tech innovations, we are culturally primed to reverse the adage and believe that invention is the mother of necessity.  There’s an app that makes my kid eat broccoli?? Download that puppy!!

Okay, maybe it’s not quite that crazy yet, but consider this TV spot for Dropcam by Nest. It features a precocious toddler adorably resigned to the installation of a home surveillance camera that will now catch him engaging in his favorite, destructive shenanigans. Never mind the fact that any child as committed to catastrophe as this boy is going to disable the Dropcam the day it arrives; but more importantly, child surveillance of this kind is a damn weird way to market this product.  Then again, Nest is owned by Google, and Google moves in mysterious ways.

Comedian Bill Maher rightly mocked this commercial on his blog, describing it as a great way to prepare your child to live in a surveillance state. I also think Maher is on target when he concludes, “But if kids never have a moment when no one is watching, how are they ever supposed to develop character?”  This refers back to the aforementioned job of the parent, which is to let go in stages.  In short, if parents envision using Dropcam as it is literally portrayed in this spot — to monitor their kids rather than show them age-appropriate trust, they probably need to rearrange their priorities and set aside whatever it is they’re doing instead of raising the child.  This is one of those moments when technology is offering a solution looking for a problem that, if employed, probably creates a brand new problem.

But I doubt the spot is meant to be taken so literally. I think the commercial probably wants to imply the more likely scenario in which the Dropcam captures that adorable child moment you might otherwise have missed. Plus, according to the online marketing materials, if you subscribe to the optional cloud storage for your video clips, you can choose to share any serendipitous cuteness on social media.  And there’s nothing inherently wrong with this, though it is unquestionably a step closer toward normalizing 24/7, 360˚ self-surveillance, which is not without potential hazards.  Considering the incidents of hacked data, Facebook surveillance, Smart TVs accidentally listening to us, the ability of hackers to surreptitiously enable webcams, and Google reading G-Mail, how comfortable are we with the idea of filling our homes with networked web-cams continuously sending video to cloud servers owned by Google or any other company with a vested interest in data mining?

Of course, the primary reason to employ home video surveillance is security, and there are certainly attractive qualities to networked monitoring systems that are remotely viewable and controllable. But it remains to be seen, as these technologies evolve, whether consumers will feel the security and convenience benefits outweigh the security risks involved. And as the oldest digital natives are just becoming parents themselves, it will be interesting to see if their adoption of “smart home” technologies is as innate as their adoption of other networked devices.  No matter what, I hope they don’t raise their kids in an atmosphere of surveillance as this TV commercial implies. Because the implications of that are anything but adorable.

Posted in Digital Culture | Tagged , , | 1 Comment

Should Revenge Porn Be a Federal Crime?

First, for those lucky enough not to know, “revenge porn” is the term used to describe the practice (usually by disgruntled ex-boyfriends) of distributing nude or sexually explicit images of people via the Internet without permission.  Once out there, as we all know, images and videos can end up anywhere, copied and redistributed by anyone; and this includes websites designed specifically to profit from traffic drawn to revenge porn.  In some cases, owners of these sites have even extorted money from victims in exchange for removing their likenesses from these sites.  Nobody writing editorials or legal opinions on the matter defends the practice itself.  We all agree that posting these intimate images without permission and violating that trust is a despicable practice. Where opinions diverge is what to do about it from a legal perspective.

Representative Jackie Speier (D-CA) is the lead sponsor of a bill that would make revenge porn a federal crime in the U.S., and the bill is set to be introduced in the House in coming weeks.  While some states have passed laws prohibiting revenge porn, and other existing laws already criminalize several of the actions required to perpetrate revenge porn (e.g. hacking or stealing data), the rationale for making revenge porn itself a federal crime is apparently Sec. 230 of the Communications Decency Act.  Section 230 provides safe harbors for site owners, who cannot be held liable for the actions of third parties using their sites.  These safe harbors do not apply to liability for federal crimes such as child pornography and copyright infringement; so enacting Speier’s bill would not only provide the grounds for prosecuting the individual perpetrators of revenge porn, but it would provide a legal basis for prosecuting site owners anywhere in the U.S. that host revenge porn.  On the other hand, some concerns have been raised that if Speier’s bill were to become law, it would jeopardize free speech by circumventing the intent of Sec. 230 of the CDA.

Last April, Mike Masnick at Techdirt wrote a post that dispassionately suggests this bill could undermine safe harbors and foster censorship of legal and sanctioned material.  To quote:

“By spreading liability, you guarantee over-censorship. It’s easy for people who are narrowly focused on a single issue to not recognize the wider impact that issue may have. Trying to accurately describe what “revenge porn” is for the sake of criminalizing its posting, will almost certainly have chilling effects on third parties and undermine the very intent of the CDA’s Section 230.”

I don’t think Masnick is quite right to say that it is hard to describe what revenge porn is. I defined it above, he defined it in his post, others have defined it in other editorials. Admittedly, though, revenge porn is a problem different from child pornography, which is addressed simply by making all sexually explicit material involving minors illegal to produce, distribute, or possess.  But in the world of adults, how does one distinguish between an amateur nude shared by permission and one distributed without permission; and then where do we draw the lines of responsibility for that distribution given the chaotic nature of digital reproduction and distribution?  Still, it seems as though fears of “guaranteed,” rampant censorship are a bit overwrought in this context.

With regard to criminalizing revenge porn, the results I imagine we want ought to be legislatively achievable without chilling free speech.  We should want to prosecute the individual who initiated the unauthorized distribution, and we’d want to prosecute the site owner who knowingly and specifically trades in revenge porn.  And it is not clear why this narrowly-focused goal must lead to censorship anymore than statutes criminalizing child porn.

The concern Masnick and others appear to be raising is that innocent site owners, fearful of criminal liability, will be motivated to over-censor their own sites through TOS policies, and that will have a chilling effect on speech.  But this seems reactionary, given the very specific nature of the crime.  For instance, one way to indemnify site owners in this case would be to create a DMCA-like provision that enables a victim of revenge porn to demand removal of her/his private images and gives the site owner no option to refuse. If the site owner complies with the request, no liability should exist.  At best, victims of revenge porn should have as easy a mechanism as possible for removal of the unauthorized content; at worst, if the claimant isn’t really a victim of revenge but simply wants her photos removed, can anyone rationally claim free speech will suffer from this “abuse” of the new law? In such a case, she may be falsely accusing an individual of a crime, which is a serious offense, but not a First Amendment issue.  Regardless, the claimant should have to be the victim herself, so abusing the law to chill speech seems unlikely.

Another factor to consider with proposed criminalization of anything is whether or not the law would act as a deterrent.  Unfortunately, criminal penalties often do not deter criminal behavior; but in this case, I suspect making revenge porn a federal crime would have demonstrative mitigating effect, if, in fact, most of the sources of these images are grumpy ex-boyfriends acting rashly.  Criminals with profit or survival motivations and individuals with various psychoses are not easily deterred by the threat of prosecution, but regular guys just being stupid often are deterred by the law.  And in this regard, criminalizing revenge porn is an important step toward a more enlightened and civilized, digital future. It has become too easy to cause harm to someone by remote control, cloaked in anonymity, and normalizing this behavior is a betrayal of the original goals of the Internet.

Interestingly enough, last month, Google announced and then retracted new policy for its blog-hosting site Blogger that would appear to have censored legal and consensual, sexual content.  Originally meant to take effect on the 23rd of this month, Google stated that sexually explicit material would not be allowed on Blogger unless it provides “public benefit, for example in artistic, educational, documentary, or scientific contexts.” I have to say that’s some rather subjective language coming from a company that repeatedly states it “cannot be responsible for policing the Internet” with regard to criminal or offensive activities. Ever since the Deep Throat case, nothing in the law even presumes to make such distinctions with regard to censorship of explicit material, but Google’s TOS almost did, if it were not for the backlash from thousands of users, particularly those who post sexually explicit articles, photos, and videos. One of these bloggers, Zoe Margolis, even used the words “it breaks the Internet” to describe Google’s proposed policy to make all sex-oriented blogs private rather than public. Was Google motivated to change the Blogger TOS in anticipation of the success of Congresswoman Speier’s proposed bill, or was the company’s sudden priggishness motivated by some other factor?  Margolis suggests a financial incentive — that Google didn’t want to be hosting “free porn,” and this ought to at least give my friends with copyright interests reason to chuckle at that particular hypocrisy.

Regardless, I think the point in this context is that the amount of “censorship” on the web is a dynamic (dare we say evolving?) process that is driven as much by the business interests of the major site owners as by any particular statutes.  While I agree that free speech must always be a foundation of these debates, I believe it is incumbent upon us as a decent society to address the fact that new technologies create new ways for bad actors to rather casually cause great harm to individuals who cannot defend themselves. And this is hardly the first time we’ve had to seek a balance between liberty and justice.  Avoiding criminalization of a behavior like revenge porn for fear of some very improbable forms of censorship sounds like a cop out to me.

Posted in Digital Culture, Law & Policy | Tagged , , , , | 14 Comments

Funny or Die Blasts Uber

Historically, this isn’t a blog where I just share stuff I find, but in this case, an exception had to be made. Enjoy!

Posted in Digital Culture | Tagged , | 1 Comment