Category: Digital Culture

NFT – The Hottest Trend in Ripping Off Artists

By now, even people who don’t follow copyright and crypto stories may have read somewhere that a crypto group called Spice DAO purchased a rare copy of Frank Herbert’s Dune for €2.66 million and then announced its intent to make the work publicly available, produce an animated series, and promote derivative works. The group also floated the notion of minting each page into an NFT, burning the book while video-capturing themselves doing so, and then minting the book-burning video into an NFT. (Nice to have so much time on one’s hands.)

https://twitter.com/TheSpiceDAO/status/1482404318347153413

Since the initial tweet on January 15, Spice DAO has been smacked around the internet by even legal laymen reminding the group that the purchase of a copy of a work, even a rare and old copy, does not transfer any rights to do anything whatsoever with the underlying material. If these guys really spent that much money on the book expecting an ROI based on any their stated plans, they should quit while they’re behind. The lawsuits they have already implied would cost a more than they’ve spent so far.

Meanwhile, Spice DAO’s stated intent to mint NFTs out of material they do not have the right to reproduce brings me to the reason I am finally saying anything at all about this crypto trend that’s been making noise for almost two years. Although I have often been asked about NFT art and copyright, I have been reluctant to write a post about the topic, mostly because I wanted to avoid writing that obligatory paragraph describing what an NFT is while pretending that any explanation makes sense. Like the rest of you, I have read definitions of NFTs in various places—critical, analytical, and promotional—but find it impossible to believe that the virtual trading floors exchanging NFTs do not represent an irrational market, buying and selling smoke.

It’s a digital record of a transaction that lives on the blockchain …

… when someone buys an NFT, they’re not buying the actual digital artwork; they’re buying a link to it.

It’s a digital certificate for intellectual property and is stored on the blockchain.

And so on.

Seriously? Are we all pretending that any of that means anything? A parable about the Brooklyn Bridge comes to mind, but in that scenario, at least there’s an actual bridge the huckster does not own. But okay. Even if the NFT market is not just another free-for-all invented by tech bros to sell to the Court of the Naked Emperor, it is clearly the coolest new way to rip off artists. As Kevin Collier wrote on January 10 for NBC …

Last week, an unidentified user on OpenSea, the dominant marketplace for the burgeoning NFT art market, started putting tens of thousands of listings of [Aja Trier’s] work, often duplicates, up for sale. Thirty-seven of them sold before she was able to convince the platform to take them down.

Tell me how this was not inevitable. If literally anyone can mint and upload an NFT to a trading platform like OpenSea, of course thieves are going to grab artworks they “find” online and do exactly what Collier’s article describes. After more than twenty years of creative works being used without permission online and enriching the platforms on which they are being used, this black-market trade in NFT art finally sheds all pretension of respect for the artist’s right to control and monetize her own work as she sees fit. Collier adds …

Trier’s story has already become common in the burgeoning world of NFT art sales. RJ Palmer, a San Francisco artist who designs creatures and monsters both as commissioned digital works and for movies and video game companies, said issuing takedown requests to NFT platforms for his work became a daily routine before he eventually gave up.

Whack-a-mole 3.0? If making artists give up on their rights was not the intent of network effects, it sure as hell is a byproduct. Creators find it both daunting and depressing to discover dozens, or hundreds, of unlicensed uses of their works online, but to now find the works explicitly being sold without permission is a whole new level of predation. Collier’s story reports that OpenSea is valued at over $13 billion, which is its own kind of crazy, but it is astounding that these platforms are not responsible for validating the provenance of the NFTs being offered.

I say astounding but, of course, it’s not surprising. In fact, the most obvious absurdity that leaps out at the moment is this:  the NFT enthusiasts have been brosplaining to artists that this is a crypto-currency solution to their woes—a new method of validating ownership in their work, and one that might even replace copyright. But aside from the fact that copyright does a lot more than validate ownership, how can the NFT serve as a means of validating ownership if the market allows any jamoke with a computer to mint and trade NFTs made from art they don’t have rights to use in the first place?

Presumably, the Spice DAO group with the rare Dune copy is exactly as naïve as their public statements imply. If so, that story is mostly a laugh. The Herbert estate can adequately address infringements of the work, if they arise. But for the artists mentioned in the NBC story, and creators even less well-known, having their art appropriated and sold as NFTs without their permission isn’t the least bit funny. In fact, one might even call it a crime.

Photo by: justlight

Would You Fall for the Anti-SOPA Campaign Today?

“The more desperate one is to get attention, rather than to accurately communicate what one believes a problem is, the more one ventures into the realm of sensationalist propaganda.”

That observation was not written about anyone promoting the Stop the Steal narrative that led to the insurrection on January 6, 2020. No, that’s Chris Ruen, in his book Freeloading (2012), describing Fight for the Future co-founder Holmes Wilson trying to come up with a line to rally support among Redditors for American Censorship Day in November 2011 to protest the anti-piracy bills SOPA/PIPA. According to Wilson’s own description, as quoted by Ruen, he eventually grabbed readers’ attention with this lulu: “The MPAA will soon have the power to block American’s [sic] access to any website unless we fight back, hard!”

There was zero truth in that statement. And although FFTF is terribly concerned about the power of social media today, for instance, Facebook’s role in fostering the events of January 6th …

…the organization is not likely to acknowledge that ten years ago, they and their friends in the “digital rights” world exploited the same manipulative tools and the same human flaws in what was arguably the first misinformation campaign to succeed at scale.

Hyperbole like Wilson’s headline naturally went viral and accreted even more outlandish claims as the Stop SOPA crusade gained momentum through the end of 2011 and culminated on January 18, 2012 with “Blackout Day.” The idea, hatched by Wikipedia founder Jimmy Wales, perhaps imagining himself as John Galt, was to get prominent websites to go dark on a single day and show us what a post-SOPA internet would allegedly look like. Wales also went on TV as the erudite and magnanimous representative of “the internet” and wove a crazy quilt of lies about SOPA/PIPA causing harm to free speech online.[1]

Behind the scenes, death and rape threats (a common feature in any digital-age campaign) were directed at female congressional staffers and other women in pro-copyright organizations, along with the predictable spate of DNS attacks against the websites of any organization that dared voice support for—or even just try to explain—the legislation. Relatedly, it is not a minor footnote that the Stop SOPA folks reached out to 4Chan, which Wilson described as “awesome,” to help push the censorship message.

Today, many readers know 4Chan as a site where misogyny, racism, and legit fascism intersect with bored adolescent boys and hackers espousing a broad spectrum of moral relativism. The output of this crucible has often been a prankster/hacktivist hybrid in which the motive for action may be nothing more than a laugh (aka for the lulz). 4Chan begat 8Chan, and 8Chan begat QAnon. And my point is not that the anti-SOPA organizers spawned Q but rather that it is significant that both January 18th and January 6th were, in part, fueled by tapping into this nebulous digital underworld.   

Above ground, Google, Mozilla, the Electronic Frontier Foundation, and other organizations with internet-industry resources, coordinated and directed a deluge of messages that jammed phone lines and clogged email servers on Capitol Hill, leading Congress to abandon the SOPA/PIPA legislation in a bipartisan group shrug, with staffers and Members mystified as to what exactly had just happened. In the days that followed, some Members even reported that upon returning to their districts, they discovered that constituents had not only not protested SOPA, but that they had never even heard of it.

January 18th is also something of a tenth anniversary for this blog, which first launched in August 2012 but really began with an editorial in The Hill in which I called support for in the anti-SOPA campaign Pavlovian and dysfunctional. At the time, I wrote that “I believe we are seeing the most extreme, most egotistical voices — from the Tea Party to Anonymous — aiming not for change, but to dismantle the system itself.”

Notice that says nothing about media piracy. Piracy was secondary. It was the mechanisms of the anti-SOPA campaign that scared the hell out of me. Worse than the specific lies about the legislation was the bigger lie being promoted by the “digital rights” groups, telling the world that Stop SOPA represented a new model for grassroots activism in which the people are finally empowered by real information and social platforms. In truth, these groups simply showed us how easy it is to rally thoughtless action with little more than some provocative bullshit on a web page.

Wilson posted that nonsense about the MPAA and site-blocking in November, and by January, a virtual mob that knew nothing about what it was protesting stopped Congress in its tracks. Fast-forward to the era of Trump, and a different breed of unscrupulous provocateur, including one calling himself Q, post even more outrageous lies online, and by January, a physical and violent mob tries to stop Congress in its tracks. If we believe there is an ethical chasm between Q and Wilson, it’s because we are overlooking the fact that this is the same disease causing different symptoms.

There is little difference between the fearmongering declarations, “Fight like hell, or you won’t have a country anymore,” and “Fight like hell, or you won’t have an internet anymore.” Convince people that someone is trying to rob them of their liberty—End piracy. Not liberty. was Google’s message in 2012—and you just might start a riot. And during this interval between the first anniversary of January 6th and the tenth anniversary of January 18th, I truly doubt that anyone intending to memorialize their role in the latter would ever acknowledge their insidious contribution to the former.

In a healthy democracy, the means are always more important than the ends, and the inversion of this principle—that it’s okay, even admirable, to lie like hell as long as you win—is the underlying pathology driving both decorum and integrity to the margins of our political discourse. The vector bearing the pathogen is social media, a force which was not so widely understood in 2012 as an addictive, dopamine-inducing activity that neutralizes reason while feeding emotion. That was the human frailty exploited by the professional anti-SOPA crowd ten years ago. And considering all the destruction that misinformation has done to the world since, I cannot imagine why anyone would want to celebrate that travesty of a milestone.

[1] For instance, the legal remedies in SOPA/PIPA have been applied in different ways both prior to and since the defeat of the bills without any effect on the speech right.

Ciao Internet Association. It’s been weird.

IA has made great progress on its mission to foster innovation, promote economic growth, and empower people through a free and open internet. As this chapter closes, member companies remain committed to advancing public policy in support of this mission and will continue to work with stakeholders in other capacities. – Board of Directors Statement on IA’s Future –

Thus spake the Internet Association upon announcing that it will cease operations at the end of this year; and anyone engaged in advocating the rights of creative professionals (i.e. copyrights) shall be forgiven their moment of schadenfreude. While it would be inaccurate to say that this lobbying organization was formed by the major internet platforms in response to the anti-piracy bills SOPA/PIPA, it was certainly no coincidence that IA formed concurrently with Silicon Valley’s extraordinary efforts to kill that legislation, which Congress abandoned in January of 2012.

It was the holiday season of 2011 when nearly every Member of Congress and the Obama White House expected the anti-piracy bills would pass easily into law. Neither Google, nor any of the internet giants, had much of a lobbying presence on Capitol Hill, but they did have an unprecedented advantage as an industry insofar as they owned the platforms we were all using to “share information” and shape one another’s views. They controlled the algorithms that prioritized results in a search or a newsfeed, and they had the data to show how effective a dumb meme could be for animating political action.

I believed then, as I do now, that the Stop SOPA campaign was a primer in how to affordably and effectively unravel a democratic republic—a little lie that taught others how to tell much bigger lies. At the same time that organizations like the EFF were congratulating themselves and the public for the “grassroots” effort that stopped those bills, Silicon Valley companies were already having discussions about getting their act together in Washington.

In addition to Google growing its own presence in D.C. from a whisper to a roar, they joined with Facebook, eBay, Amazon, and others to form the Internet Association, which was announced in the media in July of 2012—just six months after the defeat of the anti-piracy bills. The unstated mission of IA, couched in vague terms like “innovation” and “openness,” was arguably to maintain the status quo and keep the pesky laws of the “real world” from infecting the self-governing idealism of cyberspace.

Now, in a very different climate in which we even see Facebook make a show of asking Congress for regulation, it is fair to say that the status quo the IA was formed to maintain is a lost cause. Further, according to Politico, the organization’s funding imploded on the weak link that the giants’ interests are unsurprisingly not wholly aligned with the smaller members. The article quotes Yelp senior vice president of public policy Luther Lowe, using a colloquial acronym for Google, Apple, Facebook, and Amazon and stating, “This org could’ve saved itself years ago by kicking out everyone with a market cap greater than $500b (i.e. GAFA). I made this suggestion to the leadership a few years ago, but it was shot down, so we quit.”

Pause for schadenfreude. Go ahead. You’ve earned it.

In 2019, Netflix left the Internet Association and joined the Motion Picture Association—the same organization that lobbied for the anti-piracy bills and which was therefore cast as the leviathan that would “destroy the internet” and “end free speech” for the sake of a few more dollars for its movies, and all because the studios were “clinging to the dead model of copyright in creative works.” The Netflix switch was hardly a surprise for a company that was, in fact, a movie studio, but the point is that the foundation of IP protection for creative works endures while the underlying rationales for killing anti-piracy legislation in 2012 have not aged well.

Netflix, like any film producer, entertains millions of viewers while vague Silicon Valley’s vague allusions to speech rights and connecting people stammer in hearings on Capitol Hill, and lawmakers confidently announce that the free ride for internet platforms is over. Whether that means revision to liability standards like Section 230 or meaningful antitrust enforcement, etc. remains to be seen—especially while bipartisanship on these issues remains entangled in the kind of disinformation that metastasized on social media, and which is still endorsed by a consequential faction of the GOP.

While I am highly skeptical that legislation alone will help us restore the conduct necessary to maintain a healthy democracy, I do believe that there are policy-based solutions to particular harms like social media addiction in teens, nonconsensual pornography and harassment, predatory antitrust conduct, and, yes, rampant copyright infringement.

Such matters can and should be addressed through legislative action, and in that regard, the end of the Internet Association after just under a decade of operation should affirm at least two truths:  first, that maintaining the laissez-faire approach to cyber policy was always folly; and second, that there is no “the internet” to defend against public policy. The internet is just a network of machines upon which every individual and every business, small and large, is mutually dependent. So, ciao, Internet Association. It’s been weird.