Steven Johnson & A Thesis That Isn’t

A feature story for this week’s New York Times Magazine is titled The Creative Apocalypse That Wasn’tIn the article, writer Steven Johnson concludes that neither the economic nor the cultural losses in the creative industries, which were predicted to result from the digital revolution, have come to pass.  Just as lesser pundits have previously declared in blogs and industry PR pieces, Johnson tells readers the picture is actually rosier than ever for both creators and consumers since the disruption known as Napster. And of course some of those lesser pundits (e.g. Bob Lefsetz) have been quick to leap onto Johnson’s coattails and say, “See?  Told ya so!”

Setting aside the exaggerated title of the article — I don’t remember anyone seriously predicting a “creative apocalypse” — Johnson has certainly made an effort to approach the question more scientifically and more complexly than most — or at least it will appear this way to readers based on his tone and some of the culturally-sensitive questions he rightly poses.  But the tricky thing about this article, as I see it, is that its main thesis is a bit of a moving target supported by a variety of statements that, in themselves, want far more complex analysis than Johnson either realizes or is willing to admit.

If we strip away some of the color and simply look at the assertions being made, then the basic structure of the article reveals an important fallacy.  First Johnson states that most of the evidence of harm done to creators in the digital age is anecdotal, and this is partly true — although anecdotes from professionals should not be misconstrued as mere random complaining.  So, to get beyond the anecdotal, Johnson then cites macroeconomic data, compiled by the Labor Department, most of which suggests a big-picture view that creative people in all media are doing better than they were a decade ago.  But, having previously scorned the anecdotal negative, Johnson then cherrypicks bits and pieces of the anecdotal positive — some of which he misrepresents — in order to support his interpretation of the economic data he cites.

Writers, like Paul Resnikof of Digital Music News, have previously commented on some of the flaws in the kind of data Johnson cites, demonstrating how big numbers can go up without necessarily benefiting the majority of workers in a particular sector.  It can be a bit like saying,  The good news is there are more jobs this quarter, when the hidden bad news is that an individual needs two of those jobs just to meet the cost of living.  Or to put it another way, if ten musical superstars were to generate eighty-billion in revenue, this does not mean most middle-class musicians will share the prosperity of an eighty-billion-dollar industry.  So, one must be careful with macroeconomic data, and Johnson acknowledges this, when he writes:

Could the surge in musicians be accompanied by a parallel expansion in the number of broke musicians? The income data suggests that this just isn’t true. According to the O.E.S., songwriters and music directors saw their average income rise by nearly 60 percent since 1999. The census version of the story, which includes self-­employed musicians, is less stellar: In 2012, musical groups and artists reported only 25 percent more in revenue than they did in 2002, which is basically treading water when you factor in inflation. And yet collectively, the figures seem to suggest that music, the creative field that has been most threatened by technological change, has become more profitable in the post-­Napster era — not for the music industry, of course, but for musicians themselves. Somehow the turbulence of the last 15 years seems to have created an economy in which more people than ever are writing and performing songs for a living.

But even if the numbers do lead to the conclusion Johnson wants us to draw — and it’s not clear that they do — I would point out that this is an example of the shifting thesis I referred to above.  Because these numbers, gathered from such a broad perspective, do not actually tell us anything about the effect the “digital economy” (good or bad) has had on the creative market, let alone offer any indicators as to what we might expect for the near future — and this is almost more important than where things stand right now.

At best, one might conclude that coincident with the development of Web 2.0, general revenues in the creative sectors have risen, but these data alone do not reveal any specific information that justifies dismissing all the anecdotal evidence from countless creators who are telling us that, in general, the threats outweigh the opportunities. And so, it is not surprising that, after presenting these revenue data, Johnson himself resorts to a litany of familiar, yet incomplete, anecdotes about all the good news out there.  But before addressing some of these, I’d like to return to the matter of thesis and remind ourselves what the underlying logic is behind the question that’s really being asked.

Johnson begins his article by citing Napster, which is arguably the beginning of piracy as we know it; and piracy was, and continues to be, foundational to many of the most dire predictions about the future of the creative economy.  But having set the stage with Napster (and a little dig at Lars Ulrich), Johnson then transitions to a broad analysis of “success” in the creative marketplace, essentially leaving piracy out of the discussion.  Hence, there is a little sleight of hand going on here because the argument he is supporting, either intentionally or not, is one often used to assert this general claim:  That although models based on creator ownership of works are outdated, there are ample new and better models available, if creators would just recognize them.  For instance, setting aside all the crazy, ideological bullshit about piracy, the economic argument that has been made, and which Johnson is fundamentally supporting, boils down to the following:

  • Yes, piracy created an expectation of free and very low-cost access, and it decimated actual sales of media to consumers. This also led to legal platforms like YouTube getting away with monetizing infringed works for years. But …
  • The same technologies that enabled piracy and YouTube-type, montetized infringement have also opened up unprecedented opportunities for creators to earn revenue from new streams. So …
  • Smart creators will seize these new opportunities and stop worrying about piracy and other infringements.  Because …
  • The concept of copyrights for creators is an anachronism being clung to solely by legacy industry, which is incapable of adapting to a future that is chockfull of the aforementioned opportunities for individual creators.

So, it seems to me that any economic analysis regarding the sustainability of creators should either prove or disprove this basic argument.  And I will assert that Johnson fails even to fully address this matter because his article consistently strays from analysis as to whether or not the piracy-to-freemium narrative has been harmful, neutral, or beneficial to the market; and whether or not digital technology and the design of Web 2.0 have legitimately spawned enough new opportunity to overcome the market shift away from selling media direct to consumers.

Because, anecdotal though it may be, plenty of seasoned and younger creators of every size and type can tell you that many of the “new opportunities” cited by outside observers are either not new; or they are second-tier substitutes for the revenue that has been lost; or they are simply other lines of business that have little or nothing to do with the core creative works.  Johnson is as guilty in this article as many tech-utopians, who like to point to what’s left for creators (e.g. touring for musicians), now that sales are gone.  Unfortunately, this is a bit like telling someone, Dude, I know they stole your car, but at least you still have your skateboard. 

Moreover, many of the “new” revenue streams to which Johnson refers are either precarious, unproven, or short-lived in many cases.  For instance, he cites the unprecedented opportunity for a musician to share ad revenue via YouTube, but he seems to have missed several recent memos that might indicate why this model may never be a sustainable driver.

The first of these memos would be Zöe Keating’s explanation of what it’s like for an indie musician to transition from happily earning revenue via YouTube’s Content ID system to the more recent offer-she-can’t-refuse known as the Music Key contract, which in fact voids the Content ID account of any musician who does not sign.  The second memo would be a case like that of Jack Douglas, whose satirical videos are supposed to earn him ad revenue on YouTube, but they don’t earn him anything when someone re-uploads his videos to Facebook.  (Not that it isn’t funny to watch Google lose revenue as an example of  its own anti-copyright agenda, but I digress.)  And perhaps the most compelling memo Johnson didn’t get would include recent reports that indicate Web advertising itself may be in serious crisis as a value proposition across the entire industry.  Each of these three topics is a complex conversation unto itself, which would qualify some of Johnson’s blue-sky conclusions. And these are just the first that come to mind in response to just one of his anecdotal examples of how well one class of creators is supposedly doing.

There are, of course, too many instances in this article in which Johnson merely rattles off highlights (e.g. the current golden age in TV production) as though we’re meant to conclude without looking at any details that the “digital economy” has either helped, or at least not harmed, a given sector.  And, unfortunately, as other outside commentators have done before, Johnson cites the “lower cost of production,” thanks to digital technology, as an opportunity to maximize revenues for creators.  But as I have pointed out in the past, while low-cost digital tools have lowered the barriers to entry for new creators, they have not necessarily lowered the cost of all production, depending on the medium and nature of the products.

Anyone who knows production — and this is most especially true for filmed entertainment — will tell you that the “digital technology lowers cost” talking point is a half-truth at best, and a rather cynical one because it overlooks the human effort, which hasn’t really changed all that much in most cases.  For instance, most movies and TV that people seem to love — not to mention justify stealing — is produced with thousands of hours of highly-skilled labor, the cost of which has nothing to do with the digital tools being used to create or distribute works.  And, in many cases, digital technology has actually increased those working hours rather than decreased them.

And I have to say that some of Johnson’s anecdotal evidence of good news are so tangential to his thesis as to be inscrutable, like when writes the following:

Think of that signature flourish of 2000s-­era television artistry: the exquisitely curated (and usually obscure) song that signals the transition from final shot to the rolling credits. Having a track featured during the credits of ‘‘Girls’’ or ‘‘Breaking Bad’’ or ‘‘True Blood’’ can be worth hundreds of thousands of dollars to a songwriter. (Before that point, the idea of licensing a popular song for the credits of a television series was almost unheard-­of.)

Surely, Johnson knows that licensing songs for filmed entertainment is not a new thing. And while it is true that the current, creative trend to synch various, thematically appropriate tracks to the end credits of shows is a nice opportunity for music creators, these deals have no direct relationship with the “digital economy” one way or another.  Hence, Johnson is creating a distraction by identifying a revenue stream — a licensing agreement — between film producers and music creators, which neither supports nor rejects his overall point.  If anything, he skips over the fact that the indirect impact of the free-media mindset has generally driven the value of creative works down to the extent that creators are continuously asked either to work — or allow the use of their works — for free or for very low rates.  If anything, this effect on the market would seem to shrink the opportunity for musicians to make a living by licensing works, rather than expand them.  But, again, my larger point is that each of the examples Johnson hauls into his net of good tidings begs far more in-depth analysis on a case-by-case basis.

Overall, though, Johnson seems to want to frame the discussion correctly as when he writes this:

The dystopian scenario, after all, isn’t about the death of the record business or Hollywood; it’s about the death of music or movies. As a society, what we most want to ensure is that the artists can prosper — not the record labels or studios or publishing conglomerates, but the writers, musicians, directors and actors themselves.

I agree.  Despite being accused by my haters of wanting “the studios to be all powerful,” I don’t personally care if legacy corporations survive in their present form or not.  But the Kool-Aid high Johnson seems to be on is one in which he can only see the short-term empowerment of some creators via these new technologies, but not the long-term, predatory nature of a brand new group of extraordinarily powerful, corporate masters. The MusicKey contract cited above is a clear example as to how YouTube could maneuver to become a monopsony for music streaming.  So, how is that possibility better than having a handful of legacy labels and publishers? Also, if Johnson really does care, as I do, about preserving cultural diversity, then I am truly confused by this strangely dismissive statement:

The growth of live music isn’t great news for the Brian Wilsons of the world, artists who would prefer to cloister themselves in the studio, endlessly tinkering with the recording process in pursuit of a masterpiece.

It’s the words prefer and endlessly that are both offensive and naive. Plenty of professional musicians have already commented on the “growth in live music” myth, but this statement about Brian Wilson stuck out for me because it can only be a blatant reference to the album Pet Sounds — a recorded work so universally acclaimed as innovative that George Martin credited Wilson with inspiring Sgt. Peppers Lonely Hearts Club Band.  Call me crazy, but  I think we do lose something if the market cannot support both a Taylor Swift, who makes millions of screaming teenagers happy, and a reclusive, even dysfunctional, genius, who creates a recorded work of unprecedented and lasting value. It should also be noted that creative envelope-pushers like Wilson have consistently been the forces behind the invention of new technologies themselves. Think ILM and Star Wars.

Ultimately, Johnson is supporting an anti-copyright — and even pro-piracy — argument; but he seems to want to have his Cake and eat John McCrea’s lunch, too. And I say this because so much of the evidence for prosperity he offers — both economic and anecdotal — is largely dependent upon the framework of copyright. So, after leading off with a thesis that fundamentally begs a question about the seeds of piracy (i.e. Did it hurt us?), he winds up painting some pretty pictures, but never quite answers the question because so much of the good news he alludes to is antithetical to a market that ignores, tolerates, or even extolls the permission-free use of creative works.  Because, as we see with examples like MusicKey or with the Internet industry’s willingness to monetize infringement while lobbying hard against creators’ rights, many creators themselves continue to discover that the Web giveth shortly before the Web taketh away.

Hence the a question Johnson should be asking is not exclusively what the picture looks like right now (even if that picture is accurate), but whether or not the Internet industry is helping to foster a sustainable environment, not only for creators, but for non-creative enterprises as well.  And although he is a much better writer than the tech-industry pundits, I don’t think he’s told a particularly compelling story just yet.

Posted in Copyright, Digital Culture, Economics | Tagged , , | 23 Comments

Google v Hood Not Even a B-Movie Drama

For someone who clearly doesn’t like Hollywood, Emily Hong, policy wonk for New America’s Open Technology Institute*, is determined to pitch an over-the-top narrative about AG Hood v Google that is so divorced from reality that I don’t think Luis Buñel would know what to make of it.  Reposted on Slate, her title and basic plot, which portrays Google as underdog — fighting not only for itself but for the sanctity of the Internet — against the juggernaut of the MPAA in cahoots with states attorneys general, begs the audience to suspend not only disbelief, but the verifiable evidence that Google’s reach into government is greater by orders of magnitude than several other whole industries.  So much so, that when faced with indictment in 2011 by the DOJ for its role in illegal pharmaceutical trafficking, the corporate executives of Google were able to buy themselves a non-prosecutorial settlement for the meager sum of a half billion dollars.  Thus, the focus of AG Hood’s recent investigation had been to confirm whether or not Google was in compliance with that settlement — i.e. that the company was not still knowingly profiting from illegal trade.

That the MPAA would have an interest in this investigation is no surprise, even though copyright infringement was among the least of AG Hood’s concerns.  Still, ever since the release of emails leaked during the Sony hack, Google and its translucent PR network have attempted to spin the intent of Hood’s investigation — which 39 other AGs have now joined — into a conspiracy story in which the MPAA was effectively calling the shots and using the AG as a puppet to pursue the studios’ interests.  Meanwhile, it should be noted that Google does not deny that the company plays a role in mass infringement (and even monetizes it), but that any measures it might take to mitigate the problem would unavoidably lead to a “less open” Internet.  And so, like any good/bad movie plot of this nature, why do the conspiratorial MPAA want AG Hood to pursue Google?  To take over the world, of course.  Only in this case, it’s more like take over the Internet in order to censor it.  Thus, in an homage to B-movie villains everywhere, Hong writes:

“Beyond its melodrama, Google v. Hood also embodies a deeper ideological clash that persists between those who believe that Internet content must now be technologically and legally controlled and those who argue that it remain as open as possible in the service of free expression. Organizations like the MPAA and its analogue in the music industry, the Recording Industry Association of America, advocate for strict control, while technology companies (many of whom are the online intermediaries who would likely bear the costs of any control regime) and civil liberties activists want to preserve an unhindered atmosphere.”

Believe what you want about the players, their actions, and their motives.  The details and  misrepresentations are so out of proportion now, it’s futile to even go there.  For the sake of argument, then, let’s assume companies are companies, all morally or amorally equal, if you will.  Yes, the motion picture industry would like to curb piracy; and yes, Google would like to avoid taking responsibility (financial or otherwise) for its role in the problem.  That’s business.  We get that.  But the idea that the story of Hood v Google is an epic tale of good vs evil — about the forces of openness vs the forces of censorship — is preposterous.

When Google ponied up its half-billion-dollar settlement and, in theory, stopped advertising against illegal drug trafficking, did you feel a chill in your right of free speech?  Or when millions of Americans applauded Reddit for its recent ban of the racist subreddit CoonTown, did you sense so much as a cool breeze warning you not to speak your mind on Facebook or Twitter, or to search for some news item somewhere on the Web?  And while an “open Internet” sounds like a good thing, it should not be taken as gospel that whatever puts an onus on Google will “close” the Internet.  To the contrary, we have seen in recent months both litigation and policy decisions in the U.S. and abroad, which demonstrate that Google and others can be forced to mitigate harm or conform to anti-trust regulations without affecting our rights in the slightest.  In fact, for the moment, I feel entirely free to say that I believe this narrative Google and writers like Emily Hong keep spinning is complete bullshit.  And I have to wonder if that freedom is honestly best served by just letting Google do whatever it wants with complete immunity.


*As stated in the article this organization includes Google executive chairman Eric Schmidt on its board.

Posted in Free Speech, Law & Policy | Tagged , , , | 1 Comment

Thumb War:  Sexual Revolution in the Digital Age

So, is the sexual revolution over?  If so, who won?

To be honest, it is very difficult to get a fix on the state of both social and political dynamics regarding sex and relationships in the millennial generation, especially through the frenetic, hand-held lens of social media. The general consensus appears to be that millennials are all about about hooking up without any interest in even trying to have relationships, but this may not be so true as it is widely reported. At the same time, stories emanating from college campuses would have us believe that the grandsons of the Boomers are generally more prone to abusive behaviors, including rape, than their fathers and grandfathers, which is an extraordinary indictment if this is true. On the other hand, we may be hearing more about various types of dysfunctional or misogynistic male behaviors because millennial women feel more empowered than their mothers and grandmothers to openly confront these issues, and this in itself will change the dynamics of relationships.  Then again, we see some new and classic schisms among feminist voices whereby one woman’s personal empowerment is another’s treasonous surrender to sexism and “rape culture” itself.   Meanwhile, a whole industry has grown up around date-rape prevention, with products like nail polish that can detect narcotics slipped into drinks. And that phenomenon brings us full-circle back to the aforementioned, apparent, trend toward consensual, casual sex because it begs the question as to why there would be an increase in terrible subterfuges like sneaking drugs into cocktails, if all parties are more open than ever before to casual encounters?  Or does the new casualness, which has been both enhanced and defined by smart-phone hook-up apps, actually foster more bad behaviors among men because digital dating has so thoroughly turned sex into a cold, dissociative transaction? These and other questions abound that I could not hope to address in a single essay.

Suffice to say, we read a lot of disparate and often conflicting reports from the battlefield; and according to a recent exposé by Nancy Jo Sales, writing for Vanity Fair, now that the sexual revolution has gone digital, millennials are ushering in what she calls the “dating apocalypse.”  Her article, which is largely based on conversations with 20-something men and women, who are actively hooking up through platforms like Tinder, conveys a broad narrative that sounds about as bleak and dysfunctional as every complaint I’ve ever heard about the pre-digital dating scene. The major difference today, simply sounds more bleak and more depressing at twice the speed thanks to technology.

From Sales’s description, the characterization we get of apps like Tinder, Hinge, and OKCupid is that, although these services are marketed with images of dreamy couples canoodling in romantic settings, they are not being used as dating services akin to Match.com or eHarmony, but rather as straight-up transaction brokers — personal pimp-yentas if you will — solely for the purpose of arranging casual sex with complete strangers.  “Dates” might last maybe an hour from door-to-door and back again, depending on traffic conditions. And according to some reports, many of the people on Tinder are either married or in supposedly committed relationships.

Tinder itself balked at Sales’s portrayal in a series of tweets like the one which reads, “It’s disappointing that @VanityFair thought that the tiny number of people you found for your article represent our entire global userbase.”  But whether or not the young singles Sales interviewed in various locations are a fair representation of Tinder’s reported 50-million users worldwide, the company’s reactionary tweets have largely been mocked for their petulant defensiveness.  Because it doesn’t really matter how many of Tinder’s users are similar to the people Sales profiled inasmuch as her research into the state of dating today is no less in-depth than precedent articles of its kind.  And indeed the characters and narratives that emerge are not only familiar, but also sound exactly like the kinds of stories we might expect to come from digitally-enhanced dating techniques.

Not surprisingly, Sales’s article suggests that plenty of young men are as hardwired for relationship-free sex as ever, while young women are still trying to figure out how they feel about these encounters, still grappling with basic inequalities between the sexes with regard to expectations and behavioral norms.  Even some of the women profiled, who say they’re perfectly comfortable with casual sex via these apps, seem to have expectations of basic behaviors from the men — like don’t go right back onto Tinder immediately after having sex with someone — about which the men sound rather typically oblivious.  Several of the women featured indicate that even basic courtesies are the exception rather than the rule, as though the theme has gone from “Will he call?” to “Will he even say goodbye on his way out the door?” So, not so much a new story about dating as the same old story that’s gotten a little bit worse.  And how could it not if hooking up via apps like these only exacerbates certain fundamental flaws in many of us men to begin with?

Speaking as a former young man myself, I feel comfortable generalizing that we’re not inherently a bright bunch when it comes to this stuff, and we are somewhat programmed to lack empathy at exactly same time that we become sexual creatures.  As a result, it often to takes young men some measure of getting hurt, and even causing hurt, before we actually start to figure out how to behave at all, let alone how to one day be in a real relationship.  And I suspect basic truths still hold that intimacy is just plain different for women, casual or not, when it comes to behaviors associated with intimacy. And so, in the digital dating scene, more people may be acting cool on the surface than ever before; but people have always acted cool on the surface in pre-digital encounters, and it has almost never been true that sex is so emotionally unencumbered.

Perhaps the most telling details that emerge from Sales’s investigation are those which imply that at lot of the casual sex being had out there isn’t any better today than it was before the invention of the smart-phone wing-man. And it might even be worse.  In fact, according to comments from one group of young women, it sounds as though breaking down barriers to casual encounters through apps yields at least as many, if not more, complaints of erectile dysfunction and consistent failures to produce sexually satisfying experiences (i.e. orgasms) for the women.  Again, if these complaints are representative of the larger experience, this is not at all surprising.  As with empathy and other emotional connections to another human being, there is usually a learning curve when it comes to partners having good sex rather than just some sex. And so it stands to reason that good sex isn’t going to happen very often — and quite possibly never — among people who merely “Hit it and quit it,” as the contemporary saying goes, according to Sales.

Yet another aspect of apps like Tinder is that, as interactive media unto themselves, they are essentially hand-held games, which presumably breed addictive, game-like habits with the added bonus of scoring “points” that feel emotionally empowering.  Swipe images of men or women you find attractive, and it must be kind of a thrill each time there’s a reciprocal match, like playing concentration with little prizes along the way for your ego.  As such, I would not be surprised if the consummation of “winning” this game — at least for many women and possibly for more men than might admit it — is frequently less satisfying than playing the game itself.  If this is true, it really is a shame.  After all, the highs and lows of dating have always been something of a game, but one played through a broad range of human interactions like conversation, body language, humor, flirting, and so on — all stimulating a range of emotional experiences that give our lives color, depth, and meaning.  One can hardly expect to consolidate all that down to a finger swipe across a glass screen and expect richer experiences to manifest as a result.

Admittedly, it is often difficult to compartmentalize the distinct but overlapping subjects of sex, sexism, sexualization, feminism, and even such extreme behaviors as sexual abuse.  One body of thought is that sexualization is borne exclusively of sexism, which can be the foundation for assault, or at least chronic callousness. My view has generally been that sexualization is unavoidable, but that as long as all parties are on equal terms, being open about sexualizing one another (in the right contexts) is probably healthier than sublimating these instincts.  This is because, generally speaking, in cultures where sex is shameful, women wind up as victims of abuse and scorn, sometimes quite horrifically.

And of course America — nation of rock-n-roll puritans that we are —  is unique in its brand of hypocrisies, which manifest in overt sexualization often filtered through the pretensions of religiously-based notions of decency.  Sexual double-standards are part of the American DNA, and these result both in hypocritical behaviors and hypocritical public policies about which we are still fighting nearly fifty years after the Summer of Love.  And so, on one level, one might expect the sexual frankness implicit in hook-up apps to be one means by which the next generation breaks down many of these longstanding hypocrisies, theoretically putting men and women on more equal footing than ever. In this sense, we would expect the millennials to be enjoying the freest “love” since the free-love movement itself.  But according to Nancy Jo Sales’s article, it doesn’t sound as though this is quite the case.  Instead, it sounds like these apps, with their astounding billion-dollar valuations, may be just another Silicon Valley swindle, conning a whole generation into trading meaningful experiences for a gluttony of meaningless ones.

Posted in Digital Culture | Tagged , , , | Leave a comment

Advocacy or PR from the EFF?

Two posts ago, I helped ruffle many feathers — and awaken a few trolls — when I accused the EFF in general, and attorney/blogger Mitch Stoltz in particular, of producing scare-mongering hyperbole by never passing up an opportunity to ring the pavlovian SOPA bell.  Regular readers of this blog know that I have often been critical of this organization because I believe its communications too often vacillate between public advocacy (its stated mission) and PR/policy work on behalf of the Internet industry.  And the apparent correspondence between these interests is admittedly a bit confusing from time to time. Because the Internet is so thoroughly integrated into most of our lives, it is easy to believe that, for instance, what’s good for Google or Twitter or Pandora, is inherently good for those of us who rely on the flow of digital data for business, entertainment, news, relationships, and even expressions of identity and purpose.  I’ve said it before.  No other industry — not medicine, not petroleum, not even food — has ever enjoyed so much latitude in the ability to associate its motives with the public’s defense of its civil liberties. This is a potent political cocktail, which is why I advocate vigilant skepticism.

So, two days ago, Mr. Stoltz posted an opinion piece written in a dispassionate, lawyerly tone that I had just recently accused the EFF of adopting only rarely.  In this article, Stoltz offers a frank analysis as to why he believes a pre-1972 public performance right, granted in the Flo & Eddie case and now being appealed, will “squelch competition in new music services” if upheld.   Music licensing can be mind-boggling for attorneys, so I won’t be the one to parse any of Stoltz’s legal statements, but will point readers, as usual, to Terry Hart’s historically contextualized summary of this same matter.

But regardless of the legal merits on either side of this issue, the main reason I’m bothering to cite Stoltz’s new post here is that I’m unclear as to why the EFF even views this case as relevant to the general public’s rights in the digital age.  This kind of legal/financial wrangling among business interests has been going on forever, and it is rare that the outcomes set precedents that have much to do with the rights of the rest of us citizens.  As such, this particular story about public performance rights and streaming and satellite services seems much more appropriately the purview of either business reporters or PR agents for one industry or the other.  (So, you see what I’m driving at.)

I like music streaming and hope it evolves into a model that works for both consumers and creators — because right now it does not — but I certainly don’t consider Pandora’s or Spotify’s financial interests as having anything to do with my civil liberties in the digital age.   So, why does the EFF?  I suppose the closest thing to a rights issue would be Stoltz’s thesis that this ruling is harmful to competition, but even that is a stretch vis a vis civil liberties.  Moreover, as I’ve said in the past, and as any observer can can see, the Internet, by its very nature, doesn’t tend to produce multiple competitors in spaces like music streaming.  To the contrary, the Web tends to foster monopsonies (e.g. Amazon, YouTube) that are able to dictate, rather than negotiate, terms with suppliers and creators.  And that’s not the fault of rights holders, that’s just the nature of the technology in its present form.

To be clear, I don’t think there’s anything automatically wrong with vested interests organizing around policy.  It’s how most policy gets done, whether we want to admit it or not.  And often, there are mutual interests and alliances between big and small, between a corporate interest and the everyday citizen or entrepreneur.  For instance, I strongly believe that independent film will not thrive in a market that fails to mitigate piracy, and so independent filmmakers share this common ground with the big studios, which are the only entities with the resources to address piracy in either policy or legal arenas.  By the same token, I guess it is not inconceivable that the interests of music streaming companies can’t be aligned with our civil rights, but it is not readily apparent as to how this might be the case.  Instead, it seems that what the EFF opposes most of all is any policy that looks like an expansion of rights for creators ever. And this is interesting in itself because it implies that the millions of creators in this country are not part of the “your” in the motto Defending your rights in the digital world.

Posted in Law & Policy | Tagged , , , , | 13 Comments

No Borders Does Not Mean No Boundaries

Over this past weekend, it seems The New York Times Editorial Board got together, drank a little Googley Kool-Aid, and then wrote this Op-Ed provocatively titled Keep the Internet Free of Borders.  It is dismaying that, under the imprimatur of a respected name, an OpEd is published that succeeds in drawing such a typically blunt conclusion about an otherwise complex and nuanced issue of great importance.  Here’s what’s going on:

Historically, the U.S. International Trade Commission has the authority to block the importation of articles that infringe the intellectual property rights of American companies.  For instance, a U.S. based importer/wholesaler may not import counterfeits of consumer goods, and the ITC is empowered to enjoin such importation and enforce its authority through agencies like customs and border services.  But this past March, for the first time, the ITC concluded that articles under its purview may include the importation of digital files.  (Cue eerie violins.)

The case itself involves the Invisalign brand of dental aligners, which is a patented system owned by Align Technology.  A Texas-based company called ClearCorrect received data from an entity in Pakistan that contained digital models, design information, and treatment plans, which Align Technology argued can only be used “to infringe or induce the infringement” of its patents.  ClearCorrect argued that the ITC’s authority to restrict the importation of infringing articles does not extend to digital data, but the ITC ruled 5-1 in favor of Align after an administrative law judge concurred that the definition of “articles” in the statute does apply to digital imports, consistent with the ITC’s “legislative purpose to . . . prevent every type of unfair act in connection with imported articles . . . and to strengthen protection of intellectual property rights.”  This case has been appealed and was scheduled to be heard in federal court in Washington D.C. sometime today.

If the ITC’s broadening of the term articles under its purview is held to include digital data, this would certainly set a new precedent that will be attractive to owners of intellectual property.  And of course this prospect has not-surprisingly raised the hackles of digital rights proponents, who predict that granting the ITC this authority will “harm the free flow of information on the Internet.”  Unfortunately, this is the recurring narrative every time any entity, private or public, seeks to remedy any of the new forms of harm that are unavoidable byproducts of the new forms of communication, interaction, and data transmission that most of us enjoy.  Hence, editorials like the one from the Times perpetuate the frankly defeatist notion that our only options are either to accept the predations of bad actors or invite legal regimes that can only lead to censorship.

For a more detailed description of the Align case, I recommend this article written by my colleagues at the Center for the Protection of Intellectual Property.  In particular, I would draw your attention to the authors’ revelation that the usual suspects in Silicon Valley, who presently oppose upholding the ITC’s authority in this case were just a few years ago vociferously in favor of copyright owners using the ITC in precisely this manner. As part of that industry’s PR blitz against SOPA and PIPA, they widely supported the proposed OPEN Act, so named because it would “keep the Internet open.”  And as a component of this advocacy, OPEN’s corporate supporters recommended that the ITC was an ideal venue for rights holders to seek relief from entities committing infringement through digital data imports.

So, if nothing else, the Times editorial board might have done a little homework and recognized that if the Internet industry was once in favor of this type of ITC authority and is now opposed to it, this contradiction might awaken some dormant, journalistic instinct to a bit of skepticism.  Instead, the article concludes with an all-to-common statement that I would challenge anyone to define clearly.  It states, “The appeals court should strike down the commission’s ruling, which is bound to hamper the exchange of ideas and information on the Internet.”  I’ve encountered that hampering sentiment so many times, and it still doesn’t make any sense.  If the ITC blocks a shipment of counterfeit Nikes, and fair trade in sporting goods continues, why is it impossible to imagine that an equally narrow application of this same authority may apply to digital imports without harming the larger flow of information, let alone anything as esoteric as “ideas?”

At some point, this narrative has to change — the one that insists there is no way we will ever balance civil order and civil liberty in cyberspace — because every user has a stake in seeking balance, whether the concerns are privacy, personal security, or intellectual property that supports a business in any sector.  The Align case is about dental products, the Equustek case I wrote about involved systems communications hardware, and with advances in 3D printing technology, we can be sure there will be more and more trade in infringing trade secrets and  other intellectual property.  Hence, it should be clear that the growth in these unlawful and predatory practices, unique to the digital age, is already affecting interests far beyond the motion picture, music, and publishing industries.

Whatever the remedies may be, we should constantly demand specifics as to what it means to “harm the free flow of information on the Internet” because it’s not sufficient to accept that the definition is whatever the major internet companies say it is on any given day. (See above mentioned flip-flop on this very subject).  In fact, as Stephen Carlisle points out in this piece for Nova Southeastern University, in the last several months, site-blocking has been ordered in specific cases in the US, Canada, Germany, and Australia, yet here we are, using the Internet to exchange information and ideas.  What began as adolescent rationalizations for file sharing more than fifteen years ago has now metastasized into a social and corporate agenda that is attacking vital organs in our market-based economy.  We can do better.  Balancing civil order with civil liberty is what we’re supposed to be good at in this country.  We should not be afraid to try.

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