Category: Digital Culture

Google Books is a good thing, but …

Given the way information tends to distort at lighting speed these days—particularly through the filter of tech v copyright referenced in my last post—I’m not surprised to read articles like this one by Ellen Duffer writing for Forbes on a thesis proposing reasons why Google Books is “good for publishers.” And it’s not that everything she says is incorrect so much as irrelevant, if the article is purposely meant to comment on the recent 2nd Circuit Court ruling in favor of Google in its ongoing litigation with The Authors Guild.

Not only does this  lawsuit have nothing to do with publishers, the timing of Duffer’s article, essentially making an argument for the worthiness of Google Books, might lead readers to think this lengthy litigation has been all about stopping the project from moving forward. It hasn’t.  There is no need for Duffer or anyone else to extoll the virtues of Google Books when the litigant authors generally agree that the search tool is a tremendously valuable resource with great social benefit. Hence, The Authors Guild has never filed for injunctive relief asking the court to order Google to stop what it’s doing. What the authors do want is compensation from Google for digitizing their books. As stated by Authors Guild President Roxana Robinson, “We aren’t challenging the concept of a search engine, just the seizure of copyrighted material. If Google is willing to compensate an author for using her work, they’re welcome to offer searches in it as much as they like.”

In order to create the Books search tool, Google has digitized over 20 million complete works.  Many of these are in the public domain; many are still in print and are still under copyrights owned by publishers; and many are works (in print or out) for which the copyrights are owned by the individual authors or their estates.  The public domain works are obviously fair game; but regarding the books still under copyright, Google has a negotiated contract with the publishers but no deal to compensate any of the authors.

The full story behind this division is a ten-year saga of attempted deals and lawsuits going back to the days when this project began as a partnership between Google and publishers, and then the libraries got involved; but the individual authors who own their own copyrights have never been paid, which makes them wholly involuntary contributors to this potentially profitable venture for Google.  (Please tell me nobody believes at this point that Google is doing this, or anything else, solely for the greater good. Can you say $400 billion market cap?)

Google has claimed that securing rights for individual works is too cumbersome, to which The Authors Guild’s Executive Director Mary Rasenberger responds, “Google has made much of how hard it is to clear authors’ rights. Our sister organization, the Authors Registry, can assure them it is not difficult. We can show them how it’s done, and with far less money than Google has at hand.”

To be sure, complaining about the scope of work required to clear these rights sounds a little fishy coming from the company that processes 20 petabytes of data every day, the organizer of the world’s information, the unrivaled leader in all things search and index, and the company that flaunts its ability to innovate at “Google scale.” It seems to me if you’ve got both the resources and the chutzpah to want to be the first company to digitize every book on the planet, that securing even a large number of rights should be a relatively minor function of the overall project.

Instead, it appears that if Google fought this hard and spent what must be millions in legal fees just to not pay the authors, their rationale is probably not about the money; and it’s not credibly because the process is too daunting for them.  Surely, Google hoped to prevail on a fair use defense—as it has to date—and to break new legal ground in its ongoing effort to reshape the fair use exception until it is so over-broad as to be almost meaningless.

Having said that, legal experts will disagree about the extent to which this most recent  ruling really sets new and clear precedent, rather than introducing a new vagueness to the doctrine that will only be clarified through future litigation.  Either way, Google’s agenda seems transparent; and as much as we may like Google Books itself, the general public should not be too quick to assume that broadening fair use doctrine is automatically more democratic or will foster more innovation, particularly when the doctrinal change is being pushed so hard by such a powerful corporate entity. After all, Google has a pretty consistent track record for consolidating market share and for pushing boundaries in this country and abroad with regard to the rights and interests of individuals and small entities.

Whether Google pursues cases that weaken IP protections or privacy rights; or it exerts the power of its monopsony position on platforms like YouTube, I think people have figured out that Google is just a business and should not be assumed to represent all that is good about the idealistic underpinnings of the Internet itself.  The company’s empower the individual rhetoric is just PR, and with the recent dropping of its founding motto “Don’t be evil,” we are reminded that this is all just business; and no business gets to nearly a half-trillion-dollar market cap without being at least a little evil to somebody.  Google Books sort of makes this point; it’s a good service supported by somewhat evil means in that it disenfranchises the most vulnerable individuals involved, when this is unnecessary in order to fulfill its otherwise worthy goals.

I also think the Books case serves to highlight a pattern consistent with Google’s game of steadily eroding the legal rights and/or bargaining power of individuals while trading on the illusion that it serves as an engine of individual rights and individual voices.  We’ve seen how the independent musical artists on YouTube have had the gateway drug of Content ID pulled from them if they choose not to sign the newly exploitative MusicKey contract. And with plans to launch the video subscription service YouTube Red, Google appears ready to employ similar hard-ball tactics with its most lucrative video content partners, offering them the choice of a lesser revenue-share deal or outright removal from the platform. (Lest anyone forget, it’s really TheirTube.)

If we combine the kind of pressure Google exerts on independent creators through its policy agendas with the company-store type terms it can dictate to individual creators, it’s easy to think of this strategy as the digital-age equivalent of union-busting during the late 19th and early 20th centuries.  Strip labor (in this case content creators) of both their rights and their negotiating power while consolidating market share in a technological paradigm that fosters natural monopolies. It may be the future, but it’s actually a very old story being written in ones and zeroes instead of coal and steel.

Netflix Is Not An Internet Business

With the release this month of Netflix’s first official feature film Beasts of No Nation, the rental-turned-streaming service continues to prove itself a fierce competitor in the filmed entertainment industry—not only as a producer of award-winning projects, but as the preeminent, game-changing distributor having a dramatic influence on both traditional distribution models and viewer habits. This is particularly true with works we would normally call television programming, but it should be no surprise to see Netflix, Amazon, and other streaming services jump into the production of feature-length motion pictures. Still, even as Netflix reshapes the producer/distributor landscape, it would be a mistake to call it an “Internet business.”  It’s not. It’s a filmed-entertainment company—one that has followed almost the exact same business model as most cable networks, which built revenues on syndication (very similar to rentals) until they had the resources to begin producing original programming. Hence AMC makes Mad Men.

Naturally, the most profound change in TV viewing effected by streaming technology is the ability to “binge watch,” which is itself a neologism with an unnecessarily negative connotation. Speaking as a guy who abandoned “by appointment” television more than 25 years ago, I have to say that I now do watch TV shows again because of the opportunity to view an episode or two in sporadic moments of free time, though I wouldn’t really describe this as “binging” per se.  It’s really just a more dynamic and more convenient version of time-shifting (first made possible by the VCR), hence it’s easy to see the business logic in releasing whole seasons on a single day rather than one episode per week.  In a subscription model using on-demand technology, time no longer matters to the distributor as a point of access in order to retain revenue from viewers, but this is really the only distinction between a Netflix and an HBO as producer/distributors. And assuming HBO replicates the same model in the near future, this will not make it suddenly an Internet business.

But what is an Internet business anyway?  It may seem obvious, but not if we pay attention to both the colloquial, and even some of the formal ways in which we talk about the Internet. For as long as I can remember, friends and colleagues have been referring to the Internet when it isn’t quite what we mean at all. And I am sure I have been guilty of this lapse in clarity more than once on this blog, though I do try to use the expression Internet industry when writing about behaviors, motives, or agendas of a specific group of major corporations as subjects distinct from the technology itself.

Consider the expression Don’t believe everything you read on the Internet, a cliché that predates our digital times, but one that seemed to take on a new connotation during the dot com days when those bubbly, revenue-free business ventures were grist for a justifiable mill of cynicism.  Of course, neither then nor today would it make sense to dispute the veracity of information that comes through any particular set of wires. If a 20-year news veteran writes a story, it certainly does not matter if her work is published in print, online, or both. In this sense, there is no the Internet, there is only the journalist, her integrity, and her talent.  But that doesn’t stop us, it seems, from occasionally thinking of the Internet as a subjective noun, which can entertain, produce, deliver, swindle, amuse, enlighten, or lie; rather than as something more akin to a prepositional phrase, which creates an association between the individual and one form or another of human enterprise, action, or even folly and predation.  Still, we often say in casual conversation, I got this off the Internet, Look it up on the Internet, or Buy it from the Internet, and so on, entirely dissociating the information, content, or product from the extraordinarily complex, capital and labor-intensive processes behind the ephemeral page.

We talk about connections and awareness in the digital age, but real awareness is often not a byproduct of the consumer-convenience and ad-driven design of Web 2.0. Consider the reductive nature just in the act of buying a smart phone online.  A single click represents mining five metals in at least four countries as well as eight rare earths found mostly in China; international trade agreements; human labor working in conditions of varying degrees of quality; global shipping protected by multiple state navies; and a legal framework of mind-boggling proportion. In the same way many schools and parents have in recent years found it worthwhile to teach children that food doesn’t come from the supermarket, it is perhaps even more necessary to teach them that absolutely nothing comes from the Internet.

With entertainment media, it clearly does not matter whether HBO’s True Blood transmits to a viewer’s TV via one type of signal while Netflix’s Orange is the New Black uses a different transmission technology. This has absolutely nothing to do with the viewer enjoying either program and even less to do with the process of producing these hit shows. And this is perhaps an oversimple, yet relevant, example as to why I think it’s about time we stop reporting the story of the copyright debate as one of Internet businesses vs legacy media producers, or Hollywood vs The Digital Age, or most especially as Creators vs Technology.  As with the smart phone example, copyright is just one component of a legal framework that enables the production of Orange is the New Black and, by the way, the Google search algorithm that makes it convenient to look up information about author Piper Kerman.

It should be abundantly clear that for all the shiny newness of the “Netflix effect” on the industry overall, none of these developments imply any clear mandate for substantive change with regard to a producer’s copyright interests in the works—or with their interest in mitigating the influence of illegal distribution networks (piracy). To the contrary, the fresh diversity of programming and flexibility of viewing options advanced by these new producer/distributors may be even more dependent upon protecting their distribution, derivative, and merchandising rights than with so-called traditional media business models.  Whether the cable plugging into your TV is coaxial or ethernet, the legal foundation that enables production of the shows and films you watch remains fundamentally unchanged—to say nothing of the fact that the technologies themselves are dependent on many of the same legal frameworks.

Nevertheless, the ideological battle rages on, attracting “Internet activists” toward a broad anti-copyright, anti-IP agenda, perpetuating the myth that there is a central conflict between technological or creative innovation and the purpose of protecting intellectual property. The rhetoric of these squabbles distracts from the more subtle—easily misunderstood—points of actual conflict among leading entities. Meanwhile, technological similarities among major players seem to cloud some very important distinctions in business strategies and practices.

Netflix built its business entirely within the regime of licensing existing works, providing a better rental service, staying ahead of consumer demand as high-quality streaming became technologically feasible, and then migrating into original programming.  That’s called being competitive and innovative. And with its production of excellent works in just the past few years, the company has grown its number of paying subscribers to nearly 60 million; it now has a market value just behind that of CBS; and it is rapidly expanding into multiple markets around the world.

The bottom line is that neither individual creators nor major media producers have any quarrel with technology, the Internet, or the future. To say otherwise is just silly. Filmed entertainment in particular is a medium driven from its inception by a robust cycle of technological innovation. Moreover, the major players in the changing market are simultaneously symbiotic and competitive.  Hence nothing about the IP interests of a Disney should be misrepresented as a generic rebuke every line of business in which Google has an interest, let alone as a rejection of technology in general.  It ain’t the tools, it’s how you use them.

Aurous has nothing to do with SOPA

The recording industry last week filed suit against a new music platform called Aurous.  With a Spotify-like interface, the app is designed to search, retrieve, and play music files, whether they’re stored on legal platforms or on BitTorrent sites around the world. And according to early reports, the primary function is the sourcing of pirated media on BitTorrent sites, leading some to refer to the app as “The Popcorn Time for Music.”  The RIAA suit charges Aurous founder Andrew Sampson and 10 unidentified collaborators with inducement to infringe as well as contributory and vicarious infringement.  “The defendant’s business model is new,” states the RIAA, “but it’s business plan is old; illegally profiting from piracy.”

Sampson himself has already made a number of smug and dismissive public statements about the case despite a general consensus—even among parties likely to be sympathetic to Aurous—that he stands on pretty shaky legal ground.  In fact, Mike Masnick on Techdirt writes, “I fully expect that Sampson will lose the lawsuit (and lose easily) if the case gets that far. However, that doesn’t mean that parts of the lawsuit aren’t concerning.”  What Masnick means by “concerning” is that several of the remedies sought by the RIAA are, he claims, remedies called for under SOPA, which we all know did not become a law.

As surprised as I am that Andrew Sampson thinks the market can actually use yet another way to source or pirate music at this point (I mean how much freer can it all get really?), it’s no surprise at all that it has become SOP to say “SOPA” among the same consortium of activists about every case in which any plaintiff seeks injunctive relief from third-party providers like search engines, ISPs, or registrars.  In fact, when the lawsuit was first announced, The Trichordist rather humorously (though not at all facetiously) announced an “office betting pool” as to how soon the Electronic Frontier Foundation would file an amicus brief on behalf of Aurous.  And while no serious IP attorney may reasonably defend Aurous against the infringement claims, that hasn’t stopped the EFF from repeating the latest mantra of Internet industry defenders:  That [insert plaintiff here] is behaving as though SOPA became law.  Although the EFF has not filed an amicus brief or anything so official on behalf of Aurous, here’s the tweet they sent out, as Ellen Seidler reports on Vox Indie:

Once again, @RIAA asks a court to order the entire world to block & filter an app they don’t like. https://t.co/Qwg138pFPB#SOPApower

While, all this SOPA chatter may be pretty good spin—and a great way to belabor the narrative that rights holders are just insidious, draconian, evildoers hating on freedom—the references to SOPA are entirely specious. I mean not even close.

Bottom Line:  Aurous is a Domestic Business 

SOPA/PIPA were exclusively written to target foreign-based piracy sites that are beyond the reach of U.S. jurisdiction for criminal proceedings, with the objective of starving these sites of both U.S. traffic and U.S. revenue. Far from the menacing, web-killing legislative sledgehammer they were made out to be, these bills were a limited variation on existing domestic law based on the reasonable notion that American Company A should not facilitate or incidentally profit from the foreign-based theft of American Company B. But regardless of all opinions about piracy itself, the remedy in which plaintiffs may seek injunctive relief from third parties was neither unique to the proposals in SOPA, nor unprecedented in U.S. law.

As explained in my post about the Equustek case in Canada, it is a well-established procedure that when a court enjoins a defendant (e.g. Aurous) from continuing to operate pending the outcome of a case, it may also enjoin third parties from aiding the defendant (even if that aid is not intentional) in the activities central to the case.  This is both common-sensical and common legal practice that has been applied—yes, even on the Internet—both in the U.S. and abroad. And this type of relief has been granted repeatedly without resulting in any of the supposed harms to civil liberty or the vital functioning of the Internet that was predicted to occur if SOPA had passed. Moreover, it’s worth noting that with regard to web entities like Google, a court order in such a case probably enjoins the service from being used in a manner already proscribed by the site’s own Terms of Service.

This was one of the ironies about the protest against SOPA—that Americans were duped into opposing legal remedies already in force in U.S. law, all using the not-broken Internet and uninhibited free speech to do it. As the language in the SOPA bill effectively says, if the foreign site in question would be subject to criminal charges or civil liabilities in the U.S., then by court order, U.S.-based third parties could be enjoined in the same manner as if the infringing site were domestically based. It’s a subtle distinction that the SOPA bell-ringers would rather not mention, but all SOPA aimed to do with regard to third parties was to apply a commonly used remedy in regard to a specific category of websites whose owners cannot be brought into a US court; but it imposed no new liabilities on the third parties than if the target websites had been domestically based. In fact—and this is what’s particularly funny about Masnick, EFF, and Sampson himself invoking SOPA here—enjoining a third party to take similar measures under SOPA would have been far more restrictive, involving more procedural protections, than civil procedure requires in a domestic case like Aurous.

One may argue the merits of enjoining third parties in these cases until doomsday, but the invocation of SOPA does not apply to Aurous for the simple reason that it is a domestic company with domestic owners and, therefore, well within the reach of U.S. courts.  Assuming the RIAA suit proceeds, the third-party injunctive relief being sought is fully consistent with the law, since long before most of the people who so vigorously protested SOPA were even born.

Of course, all legal technicalities aside, who isn’t sick of the infantile and tediously repetitive story that keeps playing out in these cases? It seems clear that not even Aurous’s natural defenders will attempt to claim it isn’t trading in pirated music.  And even though the logical contortions that “digital-rights activists” go through to defend on principle these predatory applications do beg in-kind rebuttal, they more reasonably inspire outright dismissal. It really is like arguing with a six-year-old who’s built an elaborate yet flimsy defense for not putting on a jacket or some damn thing. At a certain point, every parent reaches the limits of his tolerance for juvenile debate and explodes with ultimatum. And then there are tears. So, bring on the tears and get it over with already.  Then, we might begin to more effectively grow a more sustainable 21st century creative economy, and we can also stop the nauseating repetition of an absurd argument that defies common sense.