Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

An Alternate History for Music, YouTube, & Everything Else

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

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

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

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

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

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

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

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

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

 

Photo by pkorbel

R Street & Techdirt Dissing Prince

“R Street is a free-market think tank with a pragmatic approach to public policy challenges.”         — R Street About Page —

If one is going to comment on public policy, then one ought to make an effort a) to understand the nature of a given topic; and b) to present facts instead of fiction.  In this regard, R Street might want to be careful about republishing articles from the blog Techdirt, as it did last week with this Op Ed by Zach Graves all about what Prince did wrong in the management of his career.

Graves notes that although Prince was a musical genius, he was one who “…never quite found the right approach when it came to licensing his music for redistribution—in spite of the fact that he sold over 100 million records, placing him among the best-selling artists of all time.”  If it seems as though the second half of that statement contradicts the first, that’s because it does.  When you combine terms like musical genius and best-selling artist, it takes some chutzpah to presume to know best—in a post-mortem analysis—how the artist in question might have made wiser choices.  In fact, Graves is working overtime trying to shoehorn Prince into an online market the artist rejected. He writes, “ … his fans were left in an odd position, on the news of his death, of being frequently unable to provide links to Prince’s massive oeuvre.”

Speaking as a representative of the 80s, and of those who have been Prince fans since he first emerged, that statement is not only surprisingly disrespectful to the wishes of a beloved artist who just passed away, but it lays bare a mindset that actually believes these fleeting moments on social media are of much greater emotional and cultural value than they really are.  The shared sense of loss among Prince’s fans is not diminished because a friend does not post “Little Red Corvette” on Facebook via YouTube.  Micro-moments like these are fine, occasionally interesting, but are utterly forgettable because of the very nature of the interface itself. Our relationships with Prince’s music, as with all music, are based on associations his songs have with tangibly profound, wonderful, painful, or intimate moments in our lives.  And if the next generation doesn’t form these same types of realtionships with music, then they probably won’t relate to music at all.  Meanwhile, the fact that YouTube & Co. were deprived of a few million advertising impressions they would have sold on the trending of Prince’s death is exactly what he wanted to deny these companies.  He saw through the lie that the OSP’s revenue model has anything whatsoever to do with his music or our love of it. And he was absolutely right.

It is fairly well known that Prince spent considerable effort and resources during his career in order to gain and maintain control of his work.  Quite simply, he did not like anyone dictating how, when, or where his music ought to be distributed—not Warner Music 23 years ago, not YouTube last month.  So, the fact that Graves chose to compare and contrast the market potential of Tidal (which licensed Prince) with Spotify (which Prince rejected) is entirely irrelevant, whether Graves’s math in this case is sound or not.  Prince was a Mozart.  And it’s rare to see that kind of genius without the individual also being fiercely proprietary about his work.  And although Graves acknowledges that Prince’s decision to license exclusively through Tidal “may have been a reflection of his proclivity to assert tight control of his brand,” he remains steadfast in his bias when he writes “…making music less accessible poses serious challenges for artists and consumers alike.  For one thing, as English singer/songwriter Lily Allen explains, it will reinvigorate incentives for piracy.”

News flash:  Prince did not disappear into obscurity despite his rejection of these “free” platforms.  Yet, somehow, Graves believes the “lesson” we are supposed to draw from Prince’s legacy is that this hugely successful, influential, and universally-respected artist was fundamentally wrong, while the new-economy sages at Techdirt and R Street are right. Their logic says that if the artist chooses not to be fractionally exploited by a YouTube or a Spotify, then he naturally deserves to be fully exploited by outright piracy.  Put that way, it sounds more outrageous, right? But that’s essentially what Graves and others are saying.  Prince told that proposition to go screw itself, and maybe that’s the real lesson he leaves behind.

Of course, Graves actually reprises the blame-the-artist-for-piracy theme because he wants to point readers to a remarkably obtuse statistic presented by Techdirt founder Mike Masnick’s very own, brand-new “think tank” called Copia.  The stat says that, “55% of 18-29 year-olds pirate LESS when offered a free, legal alternative.”  Wait for it. It’ll happen…

I’m no longer amazed at the capacity some people have for presenting bad news as if it were good news.  Because somehow Copia et al think nobody will notice that the truly stunning fact revealed by this stat is that 45% of the demographic will continue to pirate as much as ever no matter what free, legal alternatives are available.  But creators should feel molified by the prospect that the other 55% of the market will pirate less!  It is certainly indicative of a Kool-Aid narcosis that Techdirt, Copia, and R Street would even present these data with a straight face. After all, if one were to provide the same market research to the dumbest investor on earth, no matter what the business sector, he would tell you that no investment will be forthcoming.  Try pitching investors and telling them that 45% of the target market is guaranteed to steal from you while 55% of the market will only steal some from you, and watch what happens.

Perhaps most importantly, R Street in particular should be held accountable for republishing an article that completely misrepresents the facts in what is commonly called the “dancing baby” case.  Graves writes …

“Famously, Prince, via Universal Music, was behind the “dancing baby” DMCA lawsuit, which featured Prince’s “Let’s Go Crazy” playing faintly in the background of a short clip as a toddler danced. Ultimately our friends at EFF, who were representing defendant Stephanie Lenz, prevailed on their fair use claim. In 2013, EFF awarded him their “Raspberry Beret Lifetime Aggrievement Award” for “extraordinary abuses of the takedown process in the name of silencing speech.”

Setting aside the relatively minor detail that Prince himself was never directly involved in this case, the most important fact is that EFF sued UMG after the Lenz video was actually restored to YouTube via counter-notice procedure; and nobody ever sued Stephanie Lenz–at least not pertaining to this matter.  The reader is free to review the facts of this eight-year litigation and decide for himself whether the temporary takedown of the “dancing baby” video represents “award-winning” abuse of DMCA—or if perhaps the EFF chose this case because it would inevitably lead to misrepresentation exactly like the quote above.  “Prince sues mom and baby” makes good drama, but it just didn’t happen.  And to say that it did in the immediate aftermath of this artist’s passing is as rude as it is irresponsible.

As for Zach Graves’s concern that Prince’s music may not “reach a new generation of fans” due to its absence from certain free platforms, I’d like to tell him not to worry.  Prince’s work has touched millions of people and influenced thousands of other musicians around the world. It will transcend generations in spite of what web platforms have done to culture and memory itself.  At the same time, although YouTube’s predatory and monopolistic strategy may position its platform as “essential” in a certain sense for musical artists, one must ask if this winner-take-all outcome is the kind of “free-market pragmatic approach” R Street policy hopes to support.  The idea that Prince’s music needs YouTube in order to live on in our cultural memory would be a quaint conceit if it were not the kind of arrogant proposition that has hypnotized many policy thinkers by means of ceaseless repetition.

Is Code Free Speech?

I recently watched a documentary on Netflix called The Secret Rules of Modern Living: Algorithms, hosted by mathematician Marcus du Sautoy, and I would recommend this user-friendly guide for anyone who, like me, has basically sucked at math their whole lives.  In one segment, du Sautoy describes how a matching algorithm pairs compatible donor sets with patients who need kidney transplants—a problem of global complexity that could never be solved without the algorithm—and one that unquestionably saves lives. Suffice to say, code is certainly running nearly every important and trivial aspect of our lives today, so the question of whether or not code itself is speech is an acutely important one.

To cut to the chase, even that introductory paragraph suggests that code is not speech because, most of the time, we refer to code’s role as a predicate—namely in context to that which code runs.  Action is generally not protected speech but is in fact the threshold moment when various forms of “expression” can become potentially tortious behaviors.  And since, most of the time, code is a set of instructions telling a machine to perform a specific set of actions, this would seem to implicate the liability of the author or user of code for the consequences of those actions.

On his blog Uncomputing, Virginia Commonwealth University professor David Golumbia tackles the question of code as speech, placing the matter appropriately at the heart of our current political paradox in which we feel simultaneously frustrated by both corporate and government enterprise, especially when a principal responsibility of the latter is to protect us from the intemperances of the former.  Broadly, the danger inherent in the proposal that code is speech is that it too easily becomes a catch-all defense for the “automated” actions of any number of corporations, thus taking the notion of corporate personhood to a level way beyond the political-finance implications of the SCOTUS decision in Citizens United.  Golumbia writes …

“The cyberlibertarian understanding of “code is speech” contributes to a profoundly conservative assault on the rights of citizens, by depriving the state of the power to regulate and legislate against the corporations that exist only at the state’s pleasure in the first place. This is why “code is speech” has been so powerfully advocated for decades among crypto-anarchists and cypherpunks. Yet at least these groups are, for the most part, explicit about their desire to shrink governmental power and expand the power of capital. Today the view that “code is speech” is far more widespread, but it is no less noxious, than the explicit crypto-anarchist doctrine.” 

Golumbia makes it clear that he recognizes that code can have speech-like qualities and that it can, and should, be considered speech by courts when appropriate.  But he argues that the general proposition that code is fundamentally speech is “more wrong than right,” because code is more action than expression.  Where this question might get tricky for many people is with a case like Apple v FBI, in which a lot of the reportage (and Apple’s own PR) portrayed the story as one in which the corporation is protecting user privacy from government overreach.  Certainly, the privacy issue is part of the story; but as Golumbia points out, Apple presented a code-is-free-speech argument in its motion to vacate a court order this past Februrary. He explains why Apple’s position in this case was on shaky legal ground and further proposes why Apple’s argument is not only weak, but also particularly toxic to civil liberties.

Golumbia refutes Apple’s position in four parts, arguing that 1) The “code is speech” premise is not settled law as Apple asserted; 2) that even if code were speech as a settled matter, it is not true that the government can never pass laws restricting certain types of speech; 3) that code’s primary purpose is action while the First Amendment protects expression; and 4) Apple’s argument in this case is “enirely novel” with regard to its rejecting the right of the government to “compell speech” by way of ordering the company to write a code to provide access Sayed Farook’s iPhone. This last point is the part that can get clouded for some by the underlying privacy issue; but Golumbia is right, I believe, to sharply criticize the First Amendment defense posed by Apple.

Americans, especially those dismayed by Citizens United, will want to seriously consider what Golumbia is saying in this case.  Apple’s “compelled speech” defense asserts that the corporation not only has exactly the same free speech rights as the individual citizen; but in a code-driven world, the corporation may be shielded against any liability stemming from any number of actions. As Golumbia makes clear, the government historically compels corporations to “speak” all the time and also restricts corporate speech in a variety of ways that serve the public interest. A citizen is free to tell his friends on Facebook, “This soda cured my cold,” if he really wants to; but if Coke makes the same claim, they’re pretty screwed. And for good reason.

Of course, Apple’s argument remains hypothetical since the FBI did its own cracking, and the dispute between the computer-maker and the agency will no longer proceed through the courts.  But Golumbia is absolutely right when he writes, “The effect of embracing ‘code is speech’ is to say that governments cannot regulate what corporations do. That might seem like hyperbole, but it is 100% on board with the Silicon Valley view of the world, the overt anarcho-capitalism that many of its leaders embrace, and the covert cyberlibertarianism that so many more accept without fully understanding its consequences.”

With each step into the 21st century, more aspects of our lives become unavoidably dependent upon, or associated with, some form of code.  This underlying reality is the reason we should be critical of the view that organizations like the EFF promote when they perceive a million daily micro-aggressions against “speech” in cyberspace.  The idea that every transaction online is inherently speech—because code itself is speech—is most galling when it pretends to be a defense of individual civil liberties.  Because in practice, it is an argument that—to paraphrase Jaron Lanier—cannot help but cede political and economic power to the companies with the biggest computers.  As this would completely subvert the reason why freedom of speech is articulated in the First Amendment to begin with, it is a legal question of considerable magnitude.

ADDENDUM:  It is also worth noting that there is an extent to which words like code and algorithm become a means of separating the functions of computers from the decisions of human beings.  This rhetoric is often invoked when, for instance, OSPs seek to avoid responsibility for various actions resulting from their technologies.  Of course, if code is not an expression of human choice, then it is certainly not speech; but because it is an expression of human choice that usually has consequences in the physical world, then it is speech that implicates reasonable limits. (Thanks to a colleague for raising this point.)