Category: Digital Culture

TorrentFreak Still Selling Piracy as Ideology

I guess it’s pick on Andy at TorrentFreak week.  (Sorry, Andy. ) But a recent blog of his titled No Level of Copyright Enforcement Will Ever Be Enough For Big Media begs a response.

Citing TF’s decade of experience covering the piracy battles, Andy repeats a familiar narrative that because piracy will never stop, and because pirates will continue to innovate, the major rights holders will never stop wanting more “draconian” copyright laws—laws that will threaten internet freedom but will not mitigate piracy.  He says that history teaches us these laws will fail in their purpose but will continue to fuel “justifiable” outrage among users, making enemies of prospective consumers for creative works.  “No one wants a minefield of copyright law. No one wants a restricted Internet. No one wants extended liability for innovators, service providers, or the public. But this is what we’ll get if this problem isn’t solved soon. Something drastic needs to happen, but who will be brave enough to admit it, let alone do something about it?” he writes.

But brave enough to do what about what exactly?  Andy describes a landscape in which pirate technology is becoming more sophisticated and more accessible—even while he credits piracy with fostering affordable, legal services like Netflix, Spotify, Hulu, etc.  Aside from being historically inaccurate—because these streaming platforms were not a response to piracy—Andy doesn’t seem to notice that there is no solution to the problem he describes.  Because the crux of what he’s saying leads one to the conclusion that no matter how affordable and accessible a vast library of works becomes, people will still pirate—a lot.  So, the real title of his post should be No Amount of Free Content Will Ever Be Enough For Some Consumers.

The major flaw with the post is that it’s predicated on a longstanding bit of revisionist history written by the “file-sharing community,” which continues to repeat the campfire legend that piracy was a market response to the excesses and greed of Big Media.  But although the 1990s did reveal plenty that was wrong with major media corporations, I’m calling bullshit on the post hoc assertion that this was a significant factor in the adoption of Napster beginning in 1999.  People used Napster because it was cool and free, not because there was a collective sense of rebellion against corporate producers of music and movies.

I’m from the 80s. We bought a lot of music on vinyl and CD, and I don’t remember any of my peers feeling particularly ripped off by the industry—at least not any more than young people feel ripped off by everything.  But if Napster had been introduced while we were in college, I have every confidence we would have been all over it. A technology that turns a personal computer into a free jukebox?  Hell yes a bunch of teens and young adults are going to think it’s the coolest thing ever invented. And it will only be after some ethical doubt about stealing music creeps into someone’s consciousness that the rationalizations will follow—including the self-affirming lie that we’re only stealing from greedy corporations and not the artists. Right after a new band called the Red Hot Chili Peppers played our dining hall, we’d have been “Napstering” their songs and devising elaborately lame explanations for why “sharing” their music was better than buying it.

The false narrative that piracy represented a socially conscious response to corporatism morphed into the mantra per ad nauseaum that any measure proposed to mitigate piracy will always be the antithesis of “internet freedom.”  The underlying hypocrisy of this point of view is that it willfully ignores the fact that far from being an anti-corporatist “movement,” piracy merely enriched two different categories of corporatists—one, a group of outright thieves; the other, stakeholders in giant internet platforms.  As musician/activist David Lowery wrote in 2012, the new boss (Google, Spotify, etc.) is worse than the old boss (traditional labels, studios, etc.); and if Andy and the “file-sharing community” want to take credit for something, they can take credit for that.

Ultimately, though, Andy fails to recognize that as long as any rule of law—from copyright enforcement to a right-to-be-forgotten to an anti-trafficking provision—is described as anathema to “internet freedom,” there is no conversation to be had.  At least not with anyone who thinks as he does.  Because the logic he presents is that these harms are the price we pay for “freedom,” which is some ultra-libertarian, techno-centric nonsense long overdue for tossing into the Failed Ideas bin.  2017 demonstrated for many (though probably not enough) that the wildwestness of the internet isn’t exactly healthy for democracy—that just like democracy in physical space, freedom is actually sustained by certain boundaries.

Meanwhile, on a purely practical note—one I’ve alluded to the past—who are all these leisure-class consumers with so much time on their hands that they need to pirate content?  Just for filmed-entertainment, I can think of at least a half-dozen new titles that I haven’t had time to watch yet on Netflix, Amazon Prime, and Hulu; and by the time I get to those, there will be more material released.  The market is growing very rapidly, with the new streaming platforms developing some of the best new work ever made. But we can assume that piracy is also a greater threat to the streaming-only platforms than it is to traditional producers with other avenues of distribution.  Note that Netflix and Amazon top the list of plaintiffs in a lawsuit filed January 10th against the makers of Dragon Box—the latest in sophisticated piracy devices to enter the market.

More about Dragon Box in a future post; but for now, I can’t help but think that editorials like this one from Andy are sounding a little out of touch—a bit “clinging to old models” if you will. Piracy itself may not be on the wane, but the rationales used to justify it sound weaker than ever in context to the changing media market and in context to some of the hard realities of what many call “internet freedom.”  So, to the extent Andy’s post is a call to action, whatever action he imagines cannot proceed based on a history that never really happened.  It’s time to put away the childish thing that says piracy = freedom.

Photo by cienpies.

White Noise Story Generates White Noise on Copyright

TorrentFreak recently reported a story about Australian music technologist Sebastian Tomczak receiving several copyright claims on a work he created and uploaded to YouTube. The work itself is ten hours of white noise he recorded using the noise generator built into the audio application Audacity. Tomczak’s interest, as described by Andy at TF, is “listening to continuous sounds of various types, and how our perception of these kinds of sounds and our attention changes over longer periods — e.g. distracted, focused, sleeping, waking, working, etc.”

After Tomczak posted his video to YouTube, it was targeted by four rights holders claiming his track as their property; and all of these entities availed themselves of the Content ID option to monetize his video. Initially designed as a compromise solution, a Content ID account is available to rights holders who meet certain conditions, which enables automated identification of a work being used by another YouTuber. Once flagged, the account holder has the option to let the use go, request a takedown, or monetize the use by sharing in any ad revenue generated by the use. Needless to say, the system is not perfect, and among its flaws is that it may misidentify a work. Not surprisingly, many of the comments attached to the TF story viewed the white noise example as yet another example of the unfairness of copyright, though some of the comments are more appropriately critical of YouTube. Because to the extent anyone can give this particular incident much consideration at all, it really is a YouTube problem, not a copyright problem.

Keep in mind that in the world outside the demolition derby of the internet, claiming a copyright and defending a copyright are not necessarily the same thing. If Mr. Tomczak and the “publishers” making a claim against his video were squaring off to litigate, I would hope that attorneys for all parties would advise that nobody has a reasonable copyright claim in white noise. White noise by itself does not meet the minimum standard of originality for copyright and is no more protectable than an A-Flat. As much as critics like to claim that copyright is a legal system woven from pure whimsy, it isn’t quite so random in practice as it may seem when filtered through the internal policies of a business like YouTube.

And here’s a bombshell observation: the internet is brimming with people who figure out how to game the system to generate money for themselves. It could be some guy making click-bait fake news, or it could be one of these “distribution” companies that automate the process of monetizing content with which they have no relationship. This seems to be the nature of the claimants in Tomczak’s case, and these businesses are all over the web—offering to distribute your music, art, films, etc. for you. Just upload and wait for the money to arrive.

As an aside, I can tell you that when a friend of mine captured a serendipitous video that went viral, he was chased pretty aggressively by two or three of these companies offering to monetize the clip for him. These businesses were eager enough to get hold of him that they called friends and relatives in various states in their frenzy to get his video clip into their system ASAP—all for one clip in a universe of trillions of clips. Clearly, it’s a numbers game. If they can license x number of clips and monetize them for y dollars, then it’s worth the investment of z time chasing after people like my friend. There’s nothing wrong with what these companies do, per se, but they shouldn’t be confused with traditional rights holders—and certainly not with the interests of professional creators.

It should be obvious that these automated, or semi-automated, distribution systems would leverage the sound-matching capability of YouTube’s Content ID system and that they will inevitably monetize files that belong to other people. In fact, I wouldn’t be the least bit surprised to learn that there’s money to be made by using a cover of a song to try to monetize a track uploaded by the original artist. In July last year, I noted that singer/songwriter Bob Seger’s work was not on Spotify but that a whole catalog of covers by Bob Segar were available and are just good enough copies of Seger’s sound that many listeners might not immediately notice. In a similar way, what’s to stop an “innovator” from using a nearly-matching track to syphon money away from a creator who’s put her music on YouTube to monetize for herself? Suffice to say, copyright isn’t the bug in the system. The system is ideal for scammers and predators.

If there’s an unscrupulous way to squeeze a few dollars out of the advertising revenue stream flowing through the web, somebody’s already doing it. The extent to which Tomczak’s example is loosely predicated on the DMCA is a distraction from the larger picture—that this kind of chicanery is not the fault of copyright law but is more profoundly the realization of the free-for-all, pirate ethos that folks like TF’s fans have long advocated for the web. Piracy is a multi-million-dollar black market that, among other things, teaches people how to profitably game the system. So, it’s curious to see TF readers complain about legitimate copyright owners in context to a story in which a) no copyrights actually exist; and b) the false claimants against Tomczak’s video are doing exactly what the pirate sites do all day long—monetize work somebody else produced. As I wrote in my response to Pirate Bay founder Peter Sunde in 2015, this is the internet you asked for. And it’s full to bustin’ with white noise.

Turkewitz: Disruption, Fear and Slippery Slopes: Baby Steps in Building a Better Internet

(republished by permission)

The biggest story of 2017? To my mind, there is no contest — the broad emergence of an awareness that the irresponsibility masquerading as Internet freedom represented a threat to global societies and to cherished aspects of our humanity, and that a course correction was badly needed. While recognition of the fact that rewarding lack of accountability would likely incentivize anti-social and illegal conduct took longer than it should have, such an awareness came to fruition throughout 2017. Whether motivated by concerns about sex trafficking or the prevalence of other internet-enabled crimes, fake news, foreign government interference in elections, monopoly or monopsony power, or the perceived political or cultural biases of platforms, the question at the end of 2017 wasn’t whether the current legal framework for platform responsibility should be amended, but how. It became clear that the twin pillars upholding the current lack of accountability in the internet ecosystem — Section 230 of the Communications Decency Act and Section 512 of the DMCA, each of which was adopted at the dawn of the commercial internet, would need to be reexamined and a new framework established. Ideas ranged from minor course corrections such as amending Section 230 to address issues related to sex trafficking (SESTA) and changes to the DMCA to require greater use of technical tools to prevent infringement going beyond mere takedown, to proposals to broadly regulate the operation of platforms given perceived monopoly power over the last mile (access to, and influence over, users). In short, there appeared to be universal acknowledgement that the status quo wasn’t working, and some — as yet unspecified — change was needed.

But apparently, if not unsurprisingly, this acknowledgement that the status quo needs to be disrupted isn’t quite shared by everyone. In an end of the year post by EFF’s Jeremy Malcom entitled “Time to Rethink Copyright Safe Harbors? 2017 in Review,” Malcolm writes: “They [safe harbors such as the provisions of Section 512 of the DMCA] are as vital to the Internet today as they have ever been.” His argument is summed up neatly here: “Without that legal protection, it would be impossible for such platforms to operate as they do today.” Well, yeah. That’s the very point of effecting change — to modify how platforms operate. Malcom apparently looks at the internet and sees the flowering of culture and the emancipation of humanity. I want his internet. And I am prepared to work to achieve it rather than pretending it is our reality, and without employing absurd reductionism as if we were holding a referendum on whether technological progress and the internet are good or bad things. The internet is a remarkable tool for expanding communications and access to information in a truly transformational manner. The question is: can we be better stewards, and how can we most fully achieve its potential for enhancing the welfare of societies. We should not let the perfect be the enemy of the good, but nor should we let the good stand in the way of the better.

It would also be nice, but alas probably a bridge too far, to engage in dialogue about solutions without fear-mongering and labeling. In order for Malcolm’s narrative to hold, he has to take the individual creator out of the equation and to pretend that somehow the cultural marketplace is of no concern to actual creators — only to the ominous dark media lords, the dreaded “Big Content.” The ones who brought you SOPA. You know who I am talking about. The Man. Aiming only to defend a failing and exploitative business model. Malcolm works hard to reinforce this false picture, repeatedly referring to “copyright industry lobbyists,” “industry representatives,” “Big Content,” and of course, EFF’s favorite…”monopoly rents.” And suggesting that these industry trolls working in secret to destroy the internet would have gone unnoticed but for EFF’s vigilance. All of which leads to his central lie:

“But Big Content isn’t satisfied with such laws, because they place responsibility on copyright holders to request the removal of infringing content, and because the availability of free, user-uploaded content supposedly depresses the value of mainstream, paid entertainment. The content industry thinks a filtered, regulated Internet that suppresses user-uploaded content will deliver them higher revenues, and they describe the absence of these imaginary monopoly rents as a “value gap.”

There is no part of this that reflects the world we actually inhabit.

1-Large media companies (whatever that means) are not alone in calling for reform of safe harbors. A quick review of comments and submissions in the EU and US will reveal a creative community unified in its support for reform: businesses and labor, major studios and indies, individual creators and trade associations. And our problem is not that safe harbors place responsibility on copyright owners to request removal, but rather that they fail to place corresponding obligations on platforms to take meaningful action when they know, or should know, of infringing materials. Existing safe harbors in the US, EU and elsewhere create incentives for platforms to avoid knowledge of infringement, and then only obligate platforms to take remedial action which fails to provide an actual remedy. We need to reset the incentives to breathe life into the legislative intent behind existing legislation to promote cooperation in addressing infringement and expanding the digital marketplace.

2-The notion that the creative community is worried about competition to “mainstream, paid entertainment” from free user-uploaded content is truly outrageous. The creative community has no issue with creators determining that they want to offer their works for free. The problem is when users decide to upload the works of others without the creator’s permission. And yes, forcing creators to directly compete against unauthorized versions of their own works is both prejudicial and fundamentally unfair. That doesn’t require a lot of imagination, just a basic sense of fairness and justice.

3-Malcom asserts that there are two alternatives: his free and open internet, or the copyright industries’ filtered, regulated internet that suppresses freedom of expression and delivers monopoly rents. Reductionism at its very worst. The status quo, or some Orwellian nightmare of control. But of course, this is pure fantasy. The core issues related to safe harbors are not about regulation, but rather address the development of a technology-neutral way to achieve the kind of responsibility we would expect in the offline environment. Not more, and not less. To eliminate incentives for recklessness and willful blindness. And yes, to change the status quo. That’s what gets Malcom — he clings to the world he knows, and lives on a slippery slope. But when we resist doing what’s right out of fear of some future unknown, then something is fundamentally wrong.

An article published just yesterday neatly captured our reality: “The DMCA and CDA protections enabled a few Silicon Valley giants to become sinfully rich, with a concentration of power not seen since the 1920s. The digital revolution could have succeeded without the ‘disruption’ and their disregard for copyright and content creators.”

I have a modest proposal for 2018: let’s abandon evangelical fervor in favor of policy-making grounded in the observable universe. Let’s acknowledge that lack of accountability will produce unaccountable actions. And let’s be prepared to challenge the status quo to produce the kind of outcomes that enhance societal welfare. A recent article in Ars Technica entitled “How do you change the most important law in Internet history? Carefully.” While the underlying notion that Section 230 is “the most important law in Internet history” represents, as Devlin Hartline has noted, a fetishization of Section 230, I nevertheless agree with the proposition that we must exercise care. But Ars, unlike EFF, doesn’t ask whether the present framework should be amended, only how.

Image by Aenota