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.

YouTube Squeeze on Indies Instructive

Tube, yes.  You, not so much.

If there has been one consistent theme in everything I’ve written since diving into the morass we call the digital age, it’s that the Internet is not ours despite all appearances to the contrary.  Like it or not, all the populist, free-speech rhetoric that’s been spoon-fed to the public by the chief propellorheads of the land is just a gateway drug meant to dull our senses so we don’t notice the monopolistic power grab that’s been taking place. No, the Internet is not ours so much as it belongs to a very small consortium of players, most especially Google, which controls nearly all search and nearly all advertising worldwide.

As I argued during the heated squabble over SOPA, these companies don’t really give a damn about free speech or about liberating creators and consumers of content from the media elite gatekeepers; they simply want to be the new media elite, and have the potential to be far more ruthless gatekeepers.  Instead of an oligopoly of studios, labels, and publishers we’re gleefully handing over absolute power to a couple of companies, not only calling it progress but even more shockingly calling it democratic.

If you’ve been paying attention to Amazon’s practice of making books disappear as a “negotiating” tactic with key publishers, let me turn your attention to a recently announced move by YouTube, where apparently more teenagers listen to music than from any other source.  The company has been working for some time on launching paid subscription services, and so has naturally been negotiating licensing deals with major music labels.  YouTube claims to have signed agreements for 90% of the music it sought to license, but the remaining 10% comprised of independent labels, representing artists like Adele and Jack White, were not satisfied with the terms being offered by Google, Inc. and so refused to sign licensing deals.  Taking a lesson perhaps from Amazon (or Al Capone), Google will begin removing the official videos of these unsigned artists from YouTube.  But because the company is all about you and all about free expression, of course, any unofficial videos that make use of these artists’ works as soundtracks will not be targeted for removal by Google.  You’ve got to love a company that can put the screws to an artist and exploit her at the same time while the “fans” applaud the whole stinking mess.  I mean that is some whack stupid evil genius shit right there.

In 2006, Time Magazine’s Person of the Year was You.  YouTube had grown so rapidly that it was viewed by many, including presumably the editors at Time, as the year when Everyman became the story.  And ever since then, YouTube, even after its billion-dollar acquisition by Google, has traded on this populist veneer. But nobody pays a billion dollars to maintain the worlds biggest library of home movies.  It’s always been about big business and popular entertainment, and YouTube has admittedly provided opportunity for artists and other entrepreneurs to build or cultivate a following and make real revenue through ad shares.  The flaw, of course, that remains shrouded by the smoke that still lingers from its populist beginnings is that YouTube is a monopoly.  And whether it’s an indie label like Domino Recordings or a YouTube-borne entrepreneur, Google Inc. dictates terms, can change those terms, and has no viable competitor.

It’s true that several big players, including Amazon and iTunes, are jumping into the subscription streaming business to compete with the likes of Spotify, but odds are, one dominant service will emerge because that’s how economics on the web work.  Once a site or service attains a certain marketshare and can then tie its service to app-supported devices (e.g. an Android app), it becomes generally unassailable by a would-be competitor.   And that’s why all this gibberish about “break old media models and follow new ones” can be very misleading.  In the moment, the promise sounds emancipating and possibly even lucrative for creators and entrepreneurs, but over time, as we see with Amazon and books, we find out we’ve made a deal with devil and let him kill off all the archangels.

Law Gives Websites Freedom to Exploit

As a follow-up to yesterday’s post regarding privacy, the 6th Circuit Court of Appeals laid bare a flaw in the Communications Decency Act 0f 1996, granting websites immunity over liability for content uploaded by individual users. Apparently, it’s a license to exploit people. The case involves former Bengals cheerleader Sarah Jones and defamatory material uploaded to the gossip site thedirty.com.  Jones claimed mental anguish stemming from posts related to the sexual history of her and her ex-husband, sued owner/publisher of The Dirty, Nik Richie, and was awarded  $3338,000 by a federal court.  The appeals court overturned the ruling on the grounds that Jones should not have been abel to sue Richie in the first place owing to the protections afforded him by the Communications Decency Act.

Perhaps the 6th Circuit Court of Appeals ruled appropriately according to the law, but with regard to the spirit of the law, we’ve lost our goddamn minds, and the law needs revision.  Given the number of news-format sites that crowd-source (i.e. nearly all of them), and the number of sites that trade on salacious garbage (i.e. way too many of them), and the fact that everybody is fair game, it is simply insane to provide blanket immunity to website owners who profit on the misery of others.  But then, Sarah Jones is an attractive cheerleader, so I guess she deserves it, right?

It’s a world gone mad.

See article on the case here.

Will privacy become a right?

What matters more to you, the right to privacy or the right to know?  Or is it even reasonable to believe these rights are in conflict with one another? While there is some dispute as to whether or not the 4th Amendment implies a constitutional right of privacy in the United States, it seems that we have generally believed that average citizens enjoy an expectation of privacy while public figures cede at least some of that right by choosing to become public figures.  Of course, even when it comes to public figures, it would be nice to see exposures of their folly constrained by a measure of decency and an assessment of social relevance; but human nature being what it is, sex scandal trumps insider trading every time.  Regardless, long gone are the days when we average Americans can remain passive spectators in the debate about how much privacy invasion is too much.

In this brief editorial on Slate, writer and Yale Law Fellow, Emily Bazelon cites a case in Germany where a court ruled in favor of a woman who wanted an ex-boyfriend to remove erotic photos and videos of her from his computer.  This comes a little less than a month after the European Court of Justice ruled that European citizens have a “right to be forgotten” online, giving individuals power to demand removal of personal data from companies like Google (which is to say Google).  Needless to say, Google was not happy about this ruling because asking that company to remove data is like asking Augustus Gloop to get his head out of Willy Wonka’s chocolate river.  True to form, the company resorted to the standard PR tactic of making its problems our problems, claiming that giving individuals this right to be forgotten chills free speech and threatens the public’s right to know about the very people (e.g. corrupt politicians) who deserve scrutiny.  These arguments are presumably directed at the American public, where we do in fact value free speech above principles of privacy, defamation, and slander.  Of course, the position could not be more hypocritical coming as it is from an elite crowd of billionaires whose dealings deserve much scrutiny and who are also exceptionally good at covering their own digital tracks.

To Emily Bazelon’s point, however, now that we’re all a little famous or could be made famous, or infamous, by way of communication as innocuous as a bullshit tweet to something more invasive and abusive like revenge porn, the question is whether or not we Americans will take a cue from Europe on the limits of speech when basic human decency is at stake.  For anyone who doesn’t know, revenge porn refers to libraries of erotic material captured or shared consensually between a couple, and after a breakup, the ex-boyfriend (so far, it’s the men) “shares” his collection of homemade erotic bits on a website that promotes this kind of material and, of course, monetizes it all with ad dollars.  Concerns over this type of use is one reason the woman in Germany likely sought to have the material removed from her ex’s computer, but even if he would not have done something as depraved as turn it into revenge porn, the case makes the point that once anything is recorded in the digital age, it’s a potential liability even if it isn’t broadly shared via social media.  We Americans may be used to a basic right of privacy; but it isn’t explicitly protected by law and so appears to be something we’re going to have to insist upon if we really want it.

In light of my recent post about automatic copyrights for non-professionals, it’s worth noting that the German court did not consider the ex-boyfriend’s copyright interests in the photos and videos to be more important than the rights of the woman depicted in these images.  The court made the determination that these media were not professional photos that were in any way related to the ex-boyfriend’s business and that no such business relationship existed with regard to the recording of the images.  As such, it seems like common sense and common decency to find in favor of the woman, although an American court might have ruled the other way. In that post, I made the case that Americans’ interest in automatic copyrights remains a functional hedge against private or corporate misuse of amateur media like personal photographs, and I stand by that position.  For instance, in a case in which the subject is also the photographer, copyright can and has been used (e.g. DMCA) to take down revenge porn. What’s interesting about the German ruling, though, is that the court ordered the media removed from the boyfriend’s possession despite the fact he had not done anything with the assets in the form of an inappropriate distribution.  The rationale suggests the plaintiff in this case has the right to remove even the potential of misuse by her ex rather than trust indefinitely that he won’t  have too many Mojitos one night and decide she broke his heart and deserves to be punished for it.

So, for what it’s worth, here’s one way in which copyright might be due for some nuanced reform in the digital age — that it should be bound by the rights of individuals who grant use of their likenesses in one context but not in all contexts — a right to be forgotten, if you will.  But you’re not going to hear the self-proclaimed copyright reformers from Silicon Valley make this argument.