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.

Red Flag or Bloody Shirt – The MP3Tunes Case

So, what happened this past week is that a jury found that the former owner of a now-defunct music site called MP3Tunes was liable for copyright infringement because he ignored the fact that users were uploading illegal copies to his cyber-locker based site.  Safe harbors contained within existing copyright law are designed to protect website owners from this kind of liability on the grounds that it is, of course, possible for users to upload infringing content without the site owner’s knowledge or permission.  If, however, the site owner(s) can be found to have knowledge, particularly of frequent or high-volume infringement, then they effectively forfeit safe harbor protection and are subject to a liability claim.  That makes sense, and nobody really disputes this premise.  When these cases go to court, what is usually disputed is the idea that a site owner’s knowledge can be proven, and some of the more preposterous clowns in this circus like Kim Dotcom and the owners of The Pirate Bay have been known to say things like, “I don’t know what people do on my site, I’m not responsible for what they do, and anyway file sharing is good.”

According to Jeff John Roberts, writing for GIGAOM.com, the MP3Tunes case signals an important shift in legal precedent that ought to be concerning for internet and technology advocates.    Roberts writes:

“The significance of the case has little to do with MP3Tunes, which has long been closed, but instead stands as a strategic victory for copyright owners. That’s because the jury found Robertson liable on the basis of so-called “red flag” knowledge rather than “actual” knowledge. The distinction may sound arcane, but it’s one the studios have fought hard to establish as part of their strategy to change the level of proof needed to prove piracy.”

The distinction between “actual” knowledge and “red flag” knowledge may have a legal definition, but in this kind of case, it doesn’t sound arcane so much as it sounds childish.  If an owner of an actual website can measure actual traffic and assess quite accurately where that traffic actually goes; and then that actual traffic results in actual dollars in the owner’s actual pocket, I have to assume, as a prospective member of the jury, that the owner in question had what I call knowledge of the kind of files that were making him money.  So, while Roberts seems to suggest this case sets a bad precedent for the rights of site owners who ought to be protected by safe harbors, it looks to me a lot more like common sense is being applied to those site owners who clearly should not be protected.  Nevertheless, Roberts projects some very dire implications of this kind of ruling thus:

“The upshot of all this is that studios, sensing that safe harbors are weaker than they used be, may feel emboldened to go after more sites for alleged infringement. Conversely, weaker safe harbors could make entrepreneurs less willing to experiment with new platforms and technologies.”

There’s that narrative again.  The “studios” are chomping at the bit to go after every little site owner that might be infringing, and this is going to stop “innovation.”  Seriously, with all the money the internet industry has, they might be want to buy a new mantra because this one is getting really boring.  For one thing the “studios” have neither the interest nor the resources to go after the small-scale infringements out there.  Given the scope of piracy worldwide, I think the “studios” would be thrilled to mitigate the problem by some percentage and move on.  Second, after about three years of listening to internet activists tell us people are going to be afraid to innovate, I haven’t heard one legitimate example of a prospective innovation doomed to the dustbin because copyrights are protected and enterprise-scale pirates are prosecuted. Not in editorials, not on blogs, not in testimony before the House Judiciary Committee.  It’s always just some vague reference to innovation in general.  This narrative the industry and its activists keep selling, waving the bloody shirt of the early post-Napster days, has little relevance to the contemporary market, the state of piracy, or current strategies to protect IP rights.

Finally, is it necessarily the case that applying a rationale which logically incriminates someone who is actually guilty of a crime automatically weakens rights for the rest of us? Were safe harbors really weakened here?  I haven’t been to law school, but it sounds like a stretch to me in this case.  Or is this really all about Google?  Roberts rightly points out that Google is a “powerful advocate for safe harbors,” and you bet they are.  With a site the size of YouTube and users uploading videos at a rate of 100 hours every minute, I think it’s a given that company’s executives are going to be firm supporters of the “we didn’t know” defense.  There’s just a little problem in that Google’s mission is to “organize the world’s information,” and the company seems to be pretty damn good at knowing quite a lot about a great many things, including you and me and what we do, say, and see online.  So, if the “we didn’t know” defense is lately springing a few leaks, it’s possible the only “innovators” actually worried about it are a handful of billionaires who run an American company that just might have to clean up its act.

app shoot

Photo by Photo-Dave
Photo by Photo-Dave

So, if your teenager turns out to be a tech savant who builds an app that ranks in the top ten on iTunes, are you going to let him drop out of school to become an entrepreneur?

About fifteen years ago, when my eldest was just starting Kindergarten, I sat with my friend the political operative and made some predictions about education in the U.S.  We figured by the time my son was college age, we’d be in a crisis — namely that college would be so expensive that even the well-to-do would be hard pressed to pay for it, that the market would not support student loan repayments, and that young people would begin to recognize how many of the most successful and interesting people in America were college dropouts.  Most of this has come to pass, and is personified rather neatly in the kid who at least thinks he’s on the road to success with  the next great app.

This NY Times article by Matt Richtel profiles kids between the ages of about 12 and 17 who have already worked in one way or another in the technology industry, usually in the area of app development.  Despite the fact that the field is crowded — there are over one million apps in the iTunes store — app-building is enticing to the young, tech-savvy entrepreneur.  The programming has been made easier thanks to a variety of open-source and pre-fab assets; the app space is cool and fun; and a truly successful app really can make a ton of money.  If a kid has the skills and a decent idea, ordinary school can no more compete for his attention than it can for a kid who’s a sports prodigy or a child TV star.  Add to this the fact that primary education is in a state of disorder and higher education can no longer promise the employability it once did, and of course teenagers are heading to SXSW Interactive to schmooze with their kindred spirits and just maybe meet the VC who will make their dreams come true.

The second Times article, written by computer scientist Yiren Lu offers a view both wide and deep of a social, cultural, and even practical role of age in Silicon Valley.  One point I found particularly interesting is a general divide whereby older engineers tend to be the ones working in more established companies on some very important technologies you’ve never heard of (i.e. faster, better servers) while younger engineers are found in start-ups working on the latest app.  That may seem obvious; we would expect the younger crowd to be less risk-averse and to gravitate toward the “rockstar” part of the business, but Lu points out that the app bubble isn’t necessarily producing great and meaningful technology.  “Why do these smart, quantitatively trained engineers, who could help cure cancer or fix healthcare.gov, want to work for a sexting app?” Lu asks.

Reading these articles together, it’s not hard to think immediately of analogous stories of young athletes, lured away from an education toward fame and wealth only to have that immediate success undermined by some monkey wrench in the works.  This narrative usually involves a cathartic moment when the protagonist says, “There I was at 24 without an education and certainly not enough money to live on the rest of my life.”  And it’s hard to know whether or not the app bubble will spill out similar stories when it bursts. I think it is fair to say, though, that floating in that bubble has some of the same potential drawbacks as other tempting careers that produce a tiny number of stars and  a large number of hopefuls and dropouts.  When focus becomes narrow, all-consuming, and all about money, one can easily imagine a young person with mad coding skills and little life experience developing something utterly hip and utterly useless at the same time.  It’s interesting that in Lu’s article, he mentions the draw to work on a sexting app by way of example and further down in the piece he makes this observation:  “In a place with one of the best gender-ratios in the country for single women, female friends I talk to complain that most of the men are, in fact, not available; they are all busy working on their start-ups, or data-crunching themselves. They have prioritized self-improvement and careers over relationships.”

Lu doesn’t explicitly paint this contradictory image of a loner building a relationship or hook-up app, but he seems generally to believe there is some relevance to what that image implies.  In fact, it reminds me of the last scene in The Social Network in which Mark Zuckerberg, left alone, sends a friend request to his ex-girlfriend and then refreshes the screen several times seeking her acceptance.  Accurate or not, it’s a good piece of dramatic writing by Aaron Sorkin in that he shows us a man who cannot connect with anyone but who has built something revolutionary that connects everyone.  Odds are, of course, many of these kids jumping into the app shoot will discover — as even Zuckerberg I believe is still discovering — that one needs to learn and experience many things in life in order to build technologies that actually serve people.

Strange Metaphors & Bedfellows (in response to Ammori)

Sad looking siblings with arguing parents behind them
istockphoto.com

Silicon Valley lawyer and tech-industry activist Marvin Ammori wrote a strange little blog post that appeared a few days ago on Slate in its “Future Tense” section. In an attempt to be cute, Ammori likens some unnamed body of Hollywood “copyright lobbyists” to a stalker ex-boyfriend who won’t take the hint that nobody wants him around anymore.  It’s an obnoxious simile prefacing a set of assertions that are all untrue, but if you’re going to lie, arrogance is usually the best way to sell it.

Several great responses have already been written to Ammori’s post.  AdLandTV and The Trichordist have been quick to point out that Future Tense is not merely the name of new department on the Slate TOC, but is actually a part of the The New America Foundation, possibly funded by the tech industry and certainly chaired by Google’s Executive Chairman, Eric Schmidt.  The Trichordist has rightly called Slate’s journalistic integrity into question on this matter, but at least that site also hosts the best response to Ammori — in fact one of the best responses yet written about these issues — from Sons of Anarchy creator Kurt Sutter.  It’s a must read, if you haven’t already.  Sutter writes:

“Every writer, producer, actor, musician, director, tech wizard, and fine artist working today needs to be aware of what this all means for our future—we will lose the ability to protect and profit from our own work. Every kid out there who aspires to be an actor or musician or artist: This is your future that’s at stake. More importantly, everyone who enjoys quality entertainment: This impacts you most of all. Content excellence cannot sustain itself if it loses its capacity to reward the talent that creates it.”

I’ll let the matter of whether or not Google & Co. are buying the “news” on a site like Slate play itself out; but I can’t help thinking about Ammori’s dumb dating metaphor and how revealingly wrong-headed it is.  Leaving sexual identity aside, Ammori is right to imply that the other ex that is the internet industry is a lot like the one who signals a “talk to the hand” every time rights holders want to discuss ways — voluntary, legislative, technological, or social — to mitigate rampant and careless devaluation of the creative industries.  But the metaphor here isn’t about a couple who were just dating or had a fling, and now one of them doesn’t know it’s time to move on. The appropriate metaphor, if we’re going to be adults about this, is a couple who were once married and have some kids (let’s call them society); and while there may be some irreconcilable differences, this couple has no choice but to discuss certain matters like reasonable adults if they don’t want to screw up the kids.

So, when the subject of voluntary measures to curb mass copyright infringement is on the table, why is the ex that is Silicon Valley pimping out smug articles like this one, invoking SOPA (and lying about it) and the DMCA (and lying about that), and depicting  the millions of stakeholders in creative rights like they’re just some loser they woke up with one morning and are trying to forget?  Because, for now, it seems Silicon Valley is the ex going through its slutty, bad parent phase.  It wants to screw everybody while it’s still young enough and keep letting the kids do whatever they want — pirate movies, find cheap drugs, create revenge porn, act like trolls, etc. — so it can look like the cool parent while the ex who’s trying to deal with multi-billion-dollar economic reality will sound like an old stick in the mud.  This dysfunction has to end because real people are getting hurt.