Is accountability losing value?

“I don’t know how that bong got in my sock drawer! And what’s a bong anyway?”

When was the last time you used the I Didn’t Know defense; or if you’re a parent, when was the last time you were confronted with the I Didn’t Know defense? Did it work? Not so much, right? But it often feels lately as though the soul of the IDK defense is gaining social clout as some of the darker realities of Web 2.0 collide with some perfectly good laws written in the era of Web 1.0. As such, does the technology we expect to provide transparency simultaneously diminish the value of accountability?

Provisions in U.S. laws such as the Digital Millennium Copyright Act of 1998 and the Communications Decency Act of 1996, provide important safe harbors that protect site owners against civil litigation* for actions performed by third parties while using their sites. But when a site is a large enterprise with millions of pages and tens of millions of users around the world, and if it is ad-supported so that all traffic has a profit motive, the safe harbor thing becomes a rather complicated point of contention between site owners and any party harmed by activity on a site.  The scale of the site, the number of users, the volume of UGC (user generated content), and the safe harbor provisions all give a site owner considerable leverage when applying the IDK defense, even in instances where we might reasonably intuit that the owner knows precisely what’s happening on his site and more or less what certain activity is worth to him financially.  While safe harbors are vital protections — I wouldn’t want to publish without them — the practical reality is that an owner can theoretically have it both ways;  he can profit from illicit traffic by doing nothing to stop it even if he knows it’s there, and also claim to be “shocked gambling is going on in his establishment” if he is named in a suit or indictment.

The fundamental argument of ignorance is consistently the basis of defense for site owners ranging from piracy sites to Google to salacious gossip sites to the now-busted dark web drug-trafficking site Silk Road, whose alleged operator is on trial in New York. Prosecutors are charging founder Ross Ulbricht with being both mastermind and manager of a $1.2 billion criminal enterprise, and Ulbricht’s primary defenses appear to rest on I didn’t know and It wasn’t me, meaning that he denies being the man behind the avatar Dread Pirate Roberts, known to be the operator of the site. I won’t presume to comment on the particulars of the case other than to guess that with an alleged $80 million in Ulbricht’s account at the time of his arrest, if he’s not the guy, he’s probably got some ‘splainin to do.

But it was actually the comments I read below one story about the Silk Road trial that spawned this post. Unconcerned with the gravity of unchecked criminal activity occurring on that anonymous marketplace — activity that reportedly included murder-for-hire schemes — the comment that got my attention was one which stated that the only reason Silk Road was shut down and Ulbricht indicted is that the government didn’t like that it was a market over which it had no control. Maybe this is the rant of one naive kid who represents a tiny population of naive kids, but I have to wonder because the spirit of that comment is just a slight variation on the themes of the Web as Wild West or the entrepreneurial zeitgeist of the industry with its imperative disrupt everything. It all smacks just a bit of embracing anarchy, which is often confused with freedom, though is in fact the fertile ground of feudalism or totalitarianism.

“The mob is the mother of tyrants.” – Diogenes

Again, I strongly believe safe harbors are essential, and I am not qualified to suggest any workable revisions, but I do think the larger notion of accountability may be losing value the more we live in a hybrid society between the real and the digital. As we connect to one another, we also diffuse responsibility for certain actions, which has the opposite intended effect of building those connections because that diffusion actually places greater distance between our actions and those who may be harmed by them. Because the Web spreads responsibility for actions across thousands or millions of people, this often feeds the exact opposite types of behaviors that are presumed will manifest in a self-governed environment.

We saw this with Reddit’s initial refusal and then reluctant agreement to shut down threads devoted to exploiting leaked nude photos of celebrities. The apparent logic among Reddit’s management and users was that because they did not steal the photos and the photos are now “out there,” nobody is really responsible for their distribution or exploitation; and since the images are tied to a news story, the photos are kinda like freedom of the press, right? In a non-web context, like TV news, we’d probably say that showing the photos would be a non-journalistic exploitation of these individuals in order to drive ratings. I’m not saying TV never does this, only that we seem to recognize it for what it is via that medium. Yet, when the medium is a web platform like the boards of Reddit, and the editorial decision to “broadcast” certain material is crowdsourced, somehow the moral assessment of that exploitative decision is skewed because the mob is now responsible, which means nobody is responsible.

And one question we should ask is what happens when illegal or harmful activities become more automated, when accountability is even further removed from individuals to whom laws and judgments may apply? Think about it. Illegal or tortious actions can be committed by bots the same way junk email is delivered. Or maybe you go on vacation for a few days only to find out that your “smart devices” ordered up a few bottles of oxycontin, some assault rifles, and a fake ID. Sound absurd? Maybe, but . . .

Check out this story about a pair of Swiss programmers who created an art installation called The Darknet: From Memes to Onionland, which offered a display of items that were purchased by a bot shopping autonomously on a dark web marketplace akin to Silk Road. The concept was to give the bot a weekly allowance, see what it purchased of its own accord, and then display the items in a gallery setting. Interpret the statement as you will. I would personally defend the actions of these programmers as an artistic expression, although the article cited does raise interesting questions as to who might be responsible for the illegal items such as ecstasy and a counterfeit passport that were purchased by the bot. In fact, the artist/programmers stated that they take full responsibility for this contraband, which is refreshing, and I certainly don’t think they should face any criminal penalties for possession. But their experiment suggests to me that even before we answer some of the tricky challenges posed by safe harbor provisions, the IDK defense is about to gain a new phrase: “Wasn’t me. The bot did it!”

*Changed from original publication, which erroneously referred to liability and criminal activity.  Thanks to a friend for correcting the mistake.

Posted in Digital Culture | Tagged , , | 4 Comments

Zoë Keating Ponders YouTube Service

I have to direct readers’ attention to this blog post by composer and cellist Zoë Keating.  It is the clearest articulation I have yet read about the rock-and-hard-place terms demanded of artists who are considering participation in YouTube’s paid streaming service Music Key.  Keating outlines some of the non-negotiable terms she doesn’t like, for instance that her entire catalog becomes fair game anywhere on YouTube and that she must release new work on Music Key simultaneous with any other release. And if Keating or any other artist does not wish to participate in Music Key, no problem, Google will simply throw your work to the wolves.

What does that mean?

Presently, Keating and other artists participate in YouTube’s Content ID program. The way it works is when someone uploads a video with Keating’s music on it, robots identify the track and send her a notice giving her options, including an option to monetize the video.  Many artists, Keating included, choose either to let the video remain without ads, or choose to monetize it with ads; and they typically only seek removal of offensive or unlicensed commercial uses.  But for all the noise people like to make about “new business models,” the Content ID program cannot generally be called an opportunity for artists, so much as it is a band-aid applied long after the bleeding of music’s value had begun.  It’s YouTube saying, “Well, people are going to use your music online and we’re going to monetize that, and there’s not much you can do about it, so here’s a slice of the pie.”  But nobody should think for a minute that Content ID is a revenue stream that most artists consider a portion of sustainable income. Still, it does provide artists a view of where their music is being used on the service, and this certainly has value.

But along comes Music Key with terms artists don’t like — last year there were several reports about the meager revenue shares in the offer — but an artist who declines to participate in Music Key will automatically lose his/her Content ID account.  As Zoë Keating describes, this puts her in the unfortunate position of potentially removing almost 10,000 videos and upsetting thousands of fans, or gritting her teeth and accepting YouTube’s exploitative terms for Music Key. But, the implication here is actually worse…

If an artist were to decline the Music Key deal, and next month there were 40,000 videos using her music, she could neither participate in the revenue nor very effectively remove those videos due to the slow and cumbersome DMCA notice-and-takedown process. Plus, Google’s bots are no longer identifying her music for her because she’s had that account revoked.  And if she did avail herself of DMCA for removal of any videos, YouTube will show users its frowny face icon, and the EFF will catalog the removal with the Chilling Effects database, making the artist look like she’s being a greedy, mean, censor.  See, it’s not so much a new model as it is a very old model coming back into vogue.

But Zoë Keating makes a very important point in her article about copyright itself.  If you pay attention to the facts she lays out — and she’s much friendlier about it than others, including me — you will notice that the central conflict she has with the YouTube predicament is the limiting of her choices as an artist.  This is something people continue to overlook:  that in most cases, what the artist wants is to retain his or her right to decide how works are used — by whom, for compensation or not, the timing and manner of presentation and distribution, etc.  People talk about copyright as though its last remaining use is for big media corporations to scrape every nickel out of a property it bought forty years ago. And they like to make generalizations like, “the labels have screwed artists for years.” But no label was ever able to say, “Hey, take this deal, or I’ll just give your music away and sell ads to the crowds I draw.” Here’s Keating on the comparison between the old boss and the new boss:

“But I want to decide what to do when. That is a major reason why I decided in 2005 to self-publish rather than chase after a record deal. I am independent because I didn’t want a bunch of men in suits deciding how I should release my music. For 10 years I have managed to bushwhack a circuitous path around them but now I’ve got to find a away around the men in hoodies and crocs . . .”

Others have said it before, and Keating is saying it again. The new boss wears a new uniform, but he’s just another boss. Only this time he has a worse deal in one pocket and a rock in the other.  Or as Keating puts it, having been an early evangelist of the Internet’s cultural potential, “the revolution has been corporatized.”

Posted in Copyright, Digital Culture, Music | Tagged , , | 151 Comments

Assessing piracy harm is like climate science.

Ernesto (no last name) at TorrentFreak published a slightly sarcastic article about the fact that pre-release piracy did not do any apparent harm to the box office bonanza for the makers of American Sniper.  I have personally criticized pre-release piracy as a distinctly egregious form of theft and have stood by the principle that the behavior can cause harm to the primary release window of a motion picture.  Most specifically, though, I called pre-release piracy a “dick move,” and I’ll stand by that without apology whether it does financial harm to any particular film or not.

Ernesto points to the indisputable fact that some movie industry professionals blamed the widely reported pre-release leak of Expendables III for that film’s poor performance at the box office. He then rhetorically suggests that the contradiction in the case of pre-release piracy of American Sniper, which is doing very well, is a mystery.  Even with the sarcasm, TorrentFreak often presents articles in a fairly balanced manner, as follows:

First of all, the impressive opening doesn’t necessarily mean that the pre-release piracy had no impact at all. Perhaps the film would have raked in an additional $5 million without piracy.

On the other hand, some may argue that piracy may even have helped to promote the film through word-of-mouth advertising. In the end we simply don’t know what effect piracy had on the opening weekend.

I’ll agree with Ernesto enough to say that we don’t know, but I will say that the answer, (or answers) is likely a little more complex than the obvious fact that the two films being compared are like chalk and cheese.  Yes, American Sniper is a big deal film getting all sorts of accolades from critics and stirring up all forms of chatter on social media, while Expendables III was a typical example of a franchise being beaten to death and would never have attracted that degree of critical or audience attention in its wildest ambitions.  So, the success of the former and floppage of the latter is not inherently about piracy, but that has nothing to do with whether or not piracy is harmful in the aggregate, which is the more important question.

Regarding the economic harm done, if you view piracy the way Ernesto is viewing it on TorrentFreak, you’re what we call a climate science denier.  You look outside and the weather is okay. In fact, there’s snow on ground!  Global warming?  Ha!  This is the myopia we often encounter from a variety of idiots or vested interests incapable or unwilling to accept that the climate is a very large, very complex system and that climatology takes a much broader and more comprehensive view than our day-to-day peek at the weather.  Now, I’m not calling Ernesto an idiot.  As I say, I think TF can be fairly balanced, and I think his question is posed honestly.  But, trying to assess the harm, or potential harm, done to films by piracy through examination of two or three movies is like trying to study the global climate by looking at the ski report.

The reason I say this is that, like the climate, there are a variety of factors at play, including a significant amount of uncertainty, when it comes to averaging the successes and failures of motion pictures.  And one of those uncertain factors  is the fact that studio executives have believed since the days of two-reelers that they actually understand all the other unruly factors for success.

Ernesto is right that we won’t really know the harm/benefit of piracy on American Sniper, but there are a lot of other things we won’t know either.  We won’t know who went to see the film that wouldn’t have if not for some of the controversy it stirred.  We may not know — and I suspect this is the case — whether or not this film drew a demographic out to the theaters different from the demographic that typically engages in piracy.  Ernest speculates that perhaps the blockbuster would have made an additional $5 million without piracy, but one can just as easily theorize that an above average audience of 55+ year-olds offset the losses of piracy to the tune of $5 million.  Eastwood’s name alone is worth a segment of audience that doesn’t even know how to pirate and doesn’t always go out to the movies these days.

Multiply all the factors for success by the total number of films made at every level and you have a data set that needs a climate scientist’s computer to begin to make predictions about the motion picture environment.  But what we can know without a whole lot of complex research is that there is always a finite pool of money available to invest in motion pictures, and we can know that investors generally like returns and hate risk.  And film is always risky, even the “sure things.”  So, the most distinctive films, the ones that surprise us, are the riskiest ones of all, not only with regard to subject matter or style, but because they almost always operate on much smaller margins. These films are historically less attractive to investors even without added risk.   Moreover, some production companies spread their bets across a wide range of fare, some presumably more commercial, others more creatively daring.  Hence, even a loss on a commercial film that some piracy rationalizers may presume to call marginal, might have been the seed money for that other product.  In the larger economic climate, this is certainly the case.

So, if we want to make assumptions about the prospective harm done to movies by piracy, it is insufficient to compare and contrast a big movie that has a lot of reasons to flop with a big movie that has a lot of reasons to win big.  We need to look instead at the prospect that piracy, like carbon in the atmosphere, adds substantial risk to investment across the broad range of distinctive films that are produced in the middle by independent filmmakers who survive on relatively modest returns.  Those are the films we’re mostly likely to lose in the long run.

Not that that means I condone piracy of the big movies.  No, that’s still a dick move.

Posted in Copyright, Piracy | Tagged , , | 6 Comments

Google Glass on hold. But what’s next?

Last week, Google announced that it will be halting the production and sale of its somewhat controversial product Google Glass. This eyeglass-style, wearable computer, retailing for $1,500, never really caught on with consumers; and based on reports about Google’s own rationale and future plans, I have to wonder if the company is right about why Glass flopped. Industry journalists report that Google’s publicly stated reason for what it’s calling Glass Phase 1’s failure was their strategy to employ the kind of iterative product development typically used by software makers, but not often a recipe for successful hardware launches. Companies that produce apps and other software-based tools often benefit by releasing Beta versions of their products and then crowd-sourcing improvements from consumers willing and eager to kick the tires on the new offering; but this approach is not typical for makers of physical products.

Google has stated that it is not abandoning Glass but is instead moving development to new internal management that will pursue the kind of model employed by successful device-makers, who develop in secret and then reveal fully-formed products. Tech writers like Ben Johnson reporting for Marketplace on public radio, make the natural comparison to the way Steve Jobs first rolled out the iPod as a thoroughly developed unit ready to go to market. And, of course, what tech company would not want to emulate the kind of theater that Apple, and particularly Jobs, has performed so well with many of its product reveals? But comparing the iPod to Google Glass (at least so far) is a bit like comparing an electric car to the Segway*. Because we already know what a car is for, and we have a pretty solid idea about the pros and cons that come with driving. The Segway, though, while it is a cool piece of technology, did not instantly offer a value proposition for mass consumption; and it raised some tough-to-answer questions like, “Would it be safe to have thousands of these things on city streets?”

By the same token, Steve Jobs did not invent the personal music device — we had this thing called a Walkman in the early 1980s — and he certainly did not need to create a demand in the market to listen to music. The iPod, though iconic and revolutionary and all that, is really just a very elegant improvement on other products that were already meeting consumer demand. The moment it was revealed, we intuitively knew what it was for, but he iPod was cool. It was beautifully designed, consistent with Apple’s tradition of redefining what technology can look like. But without music, the iPod would be a paperweight.

By contrast, I’m not really surprised consumers did not see Google Glass as an improvement to wired life; and many of the assumptions about the product that clearly came to mind sounded rather unsavory. Notions of unauthorized, P2P surveillance or even more acute forms device distraction than we have now  became the basis of criticism and satire. Plus, Glass was expensive and had a fashion-coolness rating somewhere in the vicinity of fanny pack and pocket protector. Seriously, even Sergey Brin, whose coolness rating is a net worth of about thirty billion dollars, looks like a complete tool wearing those things. The blogosphere popularized a term for early adopters and Beta testers — Glassholes. And in a few incidents, Glass wearers were beat up or harassed by people who felt threatened by the recording capabilities of the device.

Google has stated that the privacy concerns associated with Glass were based on misunderstanding and a failure on the company’s part to communicate; and this is somewhat consistent with a Beta-launch approach to development. But given Google’s poor track record so far for its stewardship of private data, I don’t think consumers are wrong to be concerned about the prospect of any device that helps us capture and “share” data even faster and potentially more intimately than we do right now with handhelds.

What intrigues me most about Google’s stated regrouping and re-strategizing for Glass is that I have to wonder what it is about the goals of this product that the company believes consumers will ultimately want. Innovative products help us do things we already know we want to do, but do them better; or they enable us to do things we didn’t know we wanted to do until we tried. Any technologist is asking us to accept a vision, but Glass makes an interesting statement, and the metaphor could not be more obvious. Google is saying, “See the future as we see it based on our assumption that what you want is to be an always-wired, walking, talking node of the interconnected, global network.” And given the level of apparent smart-phone addiction, maybe Google is right, though many average consumers and avid technophiles increasingly talk about the value of unplugging. Steve Jobs’s own kids weren’t even allowed to own iPads. A product like Glass could reemerge just as consumers are getting better at balancing real life with wired life, and Glass 2.0 could fail even if Google does redesign the dork factor out of the product.

And lest you think I’m overstating the larger implications of a wearable like Glass, I remind readers that, Google’s Director of Engineering, Ray Kurzweil will say without equivocation that the future of computing is what he calls “hybrid thinking,” made possible by nano-tech implanted directly in the brain. Why have a computer in your hand or across your face when it can be conveniently carried around inside your head to provide you with information at the speed of thought? This is an inevitability according to Kurzweil within just two or three decades. Maybe this sounds cool to some people, but I cannot imagine why anyone would think the communication would work in only one direction, and why, therefore, Kurzweil’s prediction is not literally the foundation for creating thought police?

Imagine by the time my youngest grandchild is born that Kurzweil’s hybrid thinking, nano-tech implants have become commonplace. Then, imagine society begins to reorganize itself because the people with implants have an advantage over those without implants. Perhaps certain economic sectors disappear altogether in favor of those that thrive based on the capabilities of the new cyber-human. Fast-forward another generation or so, and the implants are as common as vaccinations because nobody wants to disadvantage his child in the new society. Maybe they’re even mandatory.

Sounds a little creepy and maybe farfetched? I don’t know. Kurzweil is not wrong that the capability to merge with the network through nano tech is not far off. The desire to do so is another matter altogether, so we should be careful what we wish for. In this regard, I’m encouraged that consumers said no to Glass because I suspect the step before man becomes machine is man wears machine.

*Originally published as “Segue.” Thanks to a reader for pointing out the error.

Posted in Digital Culture | Tagged , , | 40 Comments

Je ne connais pas Charlie

I have so far refrained from saying anything about the Charlie Hebdo murders.  For starers, I don’t like bandwagons and don’t feel a strong urge to restate the obvious. Naturally, we abhor this kind of violence and stand in solidarity with any creator, who at this moment is considering his/her own position on controversial free expression in the wake of this attack.  At the same time, I cannot claim to have had any previous knowledge of the work of these cartoonists and commentators and so cannot honestly claim to be Charlie when I don’t even know Charlie.

The free-speech-a-thon was to be expected.  This is the age of the meme, and nothing is easier, or quite possibly less relevant, than changing one’s profile photo and/or sharing an image that affirms one’s position at a moment of crisis, tragedy, or conflict.  Of course, the contrasts between that which goes viral and that which is overlooked is always an interesting subject in this regard.  A man in Saudi Arabia named Raif Badawi was sentenced to ten years and a thousand lashes for starting a blog that discussed politics and religion. And though this story is actually a more acute example of the right of free expression being repressed, we haven’t seen any memes declaring I am Raif.

I assume the Charlie Hebdo attack scares us more than stories like Badawi’s or journalists jailed or killed in dangerous and radicalized parts of the world. Because all these cartoonists did was go to work in a major European city, where the right of free speech already exists; and then violent thugs silenced them in a brutal and terrifying manner. That will give anyone who writes or creates anything, even in a free and relatively safe society, a moment’s pause.  On that subject, this interview by Celia Farber of American ex-pat cartoonist Robert Crumb is worth a read. As one of America’s most unabashed cartoonists, and a resident of France for over 20 years, Crumb found himself in a situation that demanded he say something. So, clicking like and share and all that is fine, but what if you are the cartoonist everyone is turning to for an illustrated response, and you’re now considering your own safety?

I’ve read a number of stories drawing distinctions between Charlie Hebdo’s editors as martyrs to free speech and the content of their speech, which has been described by some as racist, jingoistic, phobic, and offensively facile without satirical value.  As I say, I don’t know Charlie, and I have to wonder how many of my fellow Americans who say they are Charlie know him either, but assuming some of these criticisms of the work are valid, I have to ask this:   If some nut had gunned down Fred Phelps, would we have bothered to create a meme in his name proclaiming his right to free speech?  Probably not. But the truth is that’s when standing by speech really counts — when it offends you. And to our credit, nobody did shoot Phelps, though he could not have been asking for it much more effectively.

One of the more interesting pieces I have read questioning the value of the content of Charlie Hebdo is by Arthur Chu, writing for The Daily Beast, who describes their work as exemplary of “chan culture.” By this, he’s referring to the kind of sophomoric, scatalogical humor one finds on sites like 4Chan. Chu writes:

“When the only thing you’re reverent of is irreverence, when the only thing you hold sacred is the idea that nothing is sacred, well, you eventually get chan culture, you get one long continuous blast of pure offensiveness and taboo-breaking for taboo-breaking’s sake until all taboos are broken and there’s nothing left to say.”

Chu, as does everyone who has written from his perspective, goes to great effort to make clear that he would never suggest these cartoonists brought violence upon themselves; and it is indicative of our reactionary, meme-based times that he must tread so carefully to make that clear.  But his central point is worth consideration.  In this fleeting (and everything on social media is fleeting) canonization of these cartoonists, do we elevate the work to something it never was?  Quoting Chu again:

“. . .  the Internet is already busy at work deifying Charlie Hebdo as the new Satanic Verses and Charb as the new Salman Rushdie. People are changing their profile photos to crude, racist caricatures of Middle Easterners in solidarity with the principle of “free speech” and the average person’s Twitter feed is one-half gleefully “irreverent” reposts of offensive cartoons and one-half cloyingly reverent tributes to said cartoons.”

Like I say, I don’t know Charlie. I do know that Chu is right in principle — that merely being shocking for the sake of being shocking is easy and is not necessarily socially relevant satire. I don’t personally believe any icon or idea is beyond ridicule, but that doesn’t mean I cannot make a distinction between social commentary and offending just to be offensive. It also doesn’t mean I would necessarily have Crumb’s courage to draw what he calls “The Hairy Ass of Muhammed” in a new cartoon and wonder whether or not I had instigated my own personal fatwa.

To be honest, the Charlie Hebdo story and the editorials it has spawned serve principally to remind me that speech is dangerous, complicated business and always has been.  Perhaps in our globalized, networked, interconnected utopia, speech is becoming more dangerous in places we have long considered safe — like a movie theater running a basically dumb comedy making fun of a dictator.  Regardless, it is the seriousness of speech that forms the basis of my own scorn at the pampered, corporate elite who presume to tell us that the right of free expression not only depends on their gadgets now, but worse, that even those who risk their lives to speak don’t deserve to own their words.

Posted in Digital Culture, Free Speech | Tagged | 6 Comments