Category: Digital Culture

Adapt to What? – An Open Letter

Dear Millennials:

Once upon a time (in the 1970s), the actor you might know as Steve Martin was a rising star in stand-up comedy.  One of his jokes began with the premise that he would tell you how to earn a million dollars and never pay taxes.  The real laugh in the bit came when Martin would say, “Ok, first get a million dollars….”  See? That’s funny.  And the reason I mention the joke here is that it seems to me quite a few peppy pundits out there are telling you a version of this joke, only they’re not kidding. They’re not saying “First, get a million dollars.”  Instead, they’re saying things like “Adapt to the market you’re inheriting,” which, in many cases, is an unfortunate euphemism for “Just become a star.”  Because if you don’t become a star in the market presently being transformed as you’re trying to enter it, you might be basically screwed.

No question it was very cool of Taylor Swift, who is obviously a superstar, to stand up to Apple on behalf of professional musicians, who will never be superstars. But as this indie artist points out, all the non-superstars (who, by the way, make most of the music you probably love) are still hosed because the streaming model is not yet sustainable, no matter whose service leads the market. And these music professionals are likely to remain hosed because we may have devalued work (not just music, but work) past the tipping point of sustainability. And you should be angry about this, even if you helped feed the problem.  This article by Rebecca Smith for Fortune explains why, for instance, the Uber business model can be a universal job killer.

“Today, as the super-rich have amassed ever greater shares of wealth, the connection between working for a living and being able to earn a decent living from work has disintegrated. Perhaps nowhere is this disparity more evident than in the growing “on-demand” economy. Companies like Uber, Lyft, Crowdflower, Homejoy, and others in transportation, delivery, hospitality, home improvement, domestic service, technology and elsewhere have adopted business models that pass the costs of doing business onto workers themselves and move the wealth their service provides upwards. The on-demand economy has already created its share of billionaires – Uber’s co-founders are worth around $5 billion each, while those who drive for Uber receive meager pay.”

So, what the “adapt” mandate implies here — again echoing Steve Martin — is “First, go invent Uber.” But there’s like 80 million of you millennials in America, and the digital-age market only has room for one or two (usually one) major player in any category at a time.  So, in terms of realistic ratios, even if a million of you might invent killer apps or become YouTube stars, neither of those enterprises will create and sustain real jobs for the  the other 79 million.  As Smith points out, and as supported in this essay by Umair Haque entitled The Servitude Bubble, the devaluation of labor and general shift toward a market of ad hoc pieceworkers, livery drivers, servants, and craftspeople all working too cheaply for a wealthy minority is not limited to any particular business sector.  As many of of my colleagues have been saying for some time, what the tech industry and free-culture consumers did to music is now manifest in other areas of the market. Smith projects your future as follows:

“Our new grad might sit down to her computer every day, wondering whether she will get enough work to make it through to tomorrow, doing mind-numbing tasks like matching names to photographs and matching the word “blue” with the color “blue,” and she’ll compete with 500,000 workers across the world who are hungry for the same micro-jobs. One researcher has found that 70% of the tasks on [Amazon’s] Mechanical Turk are worth 5 cents or less, yielding an hourly wage of less than $5.”

Maybe that prediction is more dire than necessary. I hope so.  But read between the lines in any number of trends and we see a hyper-efficient, data-centric view of the world, of culture, and of market value that appears to be fueling the growth of monopsonies empowered to dictate terms to every kind of worker from book authors to carpenters to truck drivers. And it occurs to me that for all its fluffy futility, OWS demonstrated that many of you were on the right track. You should be pissed off at the 1% and angry as hell at Wall Street.  But I’m sorry to say that the business models of the digital age are not the antidote to Wall Street; they are its worst intentions on speed.  It is insane that a company like Uber, which has yet to prove itself, which creates no real jobs, which functions like a pyramid scheme, and which could evaporate overnight is valued in the tens of billions by “the market.”  This should piss you off, not only on its own terms, but because major business owners in many sectors seem to be learning from these tech-based models how to take advantage of your talent, your time, and your costly educations for pennies on the dollar. They know the more that labor is devalued across multiple sectors and the more desperate your circumstances become, the more bargaining power they have. And it doesn’t even have to be malicious. If these economic forces drive the value of work down and the global market is flooded with millions of talented, educated people, it becomes untenable for even the most generous, well-intentioned employer to offer more than a meager going rate for your services.

But here’s a solution, at least part of a solution, as I see it:  you are the market. Right now, you’re the consumer everybody wants. Of course, because the big players figured out how to monetize your attention without asking you for any money, you won’t notice right away that you’re actually paying for the present with your own future value. (And how ironic is it that your time has been turned into a commodity pegged to advertising when studies show you will avoid advertising at all costs?)  It may not occur to you that it is contradictory to hate on Wall Street and then order up an Uber car or pirate a movie or a book, and the VCs whose names you don’t know are counting on you not to notice. You get the concept that “buying local” is an economic driver for your community, but the studies and the pundits all say you won’t even buy a digital download from your favorite band because when you were kids, some adult told you that you shouldn’t pay for music.  But that adult is a billionaire now, and he hasn’t even bothered to build a company where you might get a decent job.

Here’s an experiment I am sure won’t catch on, but what the hell:  stop pirating media; if you can, buy one extra album or video or book or something each month in a local, retail environment; get a subscription to a legal streaming service; and most of all, refuse to patronize or work for a businesses that wants people to work for free or is looking to turn valued labor into freelance, micro-tasks. Then, watch what happens. You’re the market. Let the damn billionaires adapt.

Canadian court reflects common sense in rejecting Google appeal.

whack moleWith progress in almost anything, there are usually downsides. Manufacturing and power generation produce pollution; automobiles produce pollution and accidents; smart phones produce selfies.  In some cases, it is only common sense (at least to many of us) to try to mitigate the negative results of an otherwise good thing through legal regimes because the owners of industry don’t have a particularly solid track record for taking voluntary measures to reduce harm where they can.  It’s a familiar narrative. A factory puts too much gunk in the river; society, through its government agencies, tells them to cut it out; and the factory owners howl that there will be job losses, the end of free markets as we know them, and communist troops in the streets within weeks.  When we’re sane, we call bullshit, the factory cleans up its act, and life goes on in the free world while the river rehabilitates itself.  When we’re less sane, we believe the narrative of industry, go for the short money, and let the larger consequences of that polluted river be our kids’ problem.

Google’s search tool indexes the internet for us, and this is a good thing. It even anticipates what we are about to search for, which is a slightly creepy thing, but often impressively handy.  On the other hand, top search results can sometimes be misleading because the hierarchy of results has little to do with quality data per se.  For instance, a paid-for ad linking to a scam tech-support supplier might appear well above the legitimate site hosted by the manufacturer. This is a disservice both to the consumer and the supplier, but Google has rarely demonstrated that it cares much about these particular flaws. Traffic is traffic. Money is money. As a result, search itself can be an opportunity for bad actors to hijack business away from legitimate sellers toward inferior, infringing, or illegal goods and services.  For years, copyright holders have argued that allowing pirate sites to appear in top search results exacerbates the piracy problem; and Google has countered that search has little to with piracy.

Either way, even when Google has taken action to remove a link that contributes in some way to harming an individual or entity, they have thus far only been willing to remove specific pages (URLs) as identified in a single DMCA notice and takedown request. Thus, all a bad actor has to do is change URLs for pages on his website, forcing the injured party to keep sending a barrage of DMCA requests in an effort to stop Google searches from providing infringing results. If that sounds unreasonable, it is.  If your common sense says perhaps Google should de-index the entire site of a bad actor so that the site doesn’t appear in any results anywhere, it’s because that is common sense.

But so far, Google, the Internet industry in general, and so-called digital rights organizations like the EFF have been vehemently opposed to de-indexing sites under any circumstances, which can make them sound more like techno-fundamentalists than rational adults capable of understanding that balanced and measured restrictions designed to protect the rights of the injured from the predations of the injurious neither harm the benefits of the internet nor in any way threaten larger principles like free speech.  And in somewhat different language, that’s pretty much what the Court of Appeal of British Columbia told Google last week in a case of this very nature.

Equustek Solutions makes network devices that enable complex business equipment to communicate with one another.  One of this company’s distributors (named as Morgan Jack in the litigation) began first stripping Equustek’s name from products and selling them as competitive alternatives, and later stealing trade secrets to manufacture and sell knock-off products.  When Morgan Jack was ordered by a Vancouver court to stop operating its counterfeit business in that province, they did what any contemporary huckster does — they went virtual. They set up a web “business,” creating multiple sites, which is how one goes about hijacking search results from a legitimate supplier. Equustek, is now suing Morgan Jack for trademark and trade secrets infringement, but in the meantime the British Columbia Supreme Court granted the plaintiff injunctive relief by ordering Google to de-index the counterfeit sites from its search results, not only in Canada, but worldwide.  Google appealed this judgment, and was last week rejected on all of its major arguments, which I shall attempt to summarize.

Jurisdiction

Google claimed that because it did not do business materially in the province — no offices, no servers, etc. — that the court did not have the “competence” (legalese for authority) to order the removal of these sites from being returned in its search results.  But the appellate court responded thus:

“[Google’s] activities in gathering data through web crawling software, in distributing targeted advertising to users in British Columbia, and in selling advertising to British Columbia businesses are sufficient to uphold the chambers judge’s finding that it does business in the Province. The court, therefore, had in personam jurisdiction over Google.”

That’s a compelling response with potentially far-reaching implications because among the many defenses used by web owners who contribute to some form of harm — either by design or by accident — is the metaphysical “nowhereness” of a website.  It becomes as much a matter of existential philosophy as one of legal theory. But the tech-utopian view, deriving much chutzpah from Barlow’s Declaration of the Independence of Cyberspace, likes to describe a website as though it’s a particle, everywhere and nowhere at the same time, that it can no more be bound by terrestrial laws of Man than the quantum universe can be forced to behave according to the applied physics of our everyday, macro experience.

Of course, it’s common-sensical to think that a company that operates globally, that proudly markets its transformative role in tens of thousands of communities, and that profits handsomely by virtue of its global reach into multiple business sectors can be held to some burden of civic responsibility in every community in which it clearly does tangible business. In fact, in referring to the defendants Morgan Jack from the actual infringement case of Equustek v Jack, the judge writing this appeal decision uses the following language:

“As the product (i.e the counterfeit Equustek hardware) that they sell is a physical one which must be delivered to customers, it may be more accurate to describe their operations as ‘clandestine’ than as ‘virtual’. “

That’s certainly not a reference to Google, but it could easily be a reference to a company like Amazon in a similar case; and as Google indeed moves into physical territory, like home delivery of products, the “You can’t touch me, I don’t exist” argument may continue to sound rather unappealing to judicial ears.

Also, on the issue of jurisdiction, Google argued that upholding the B.C. Court’s injunction to de-index the sites from search results would make the company’s search services subject to every jurisdiction in the world.  And you gotta love the judge’s response to this complaint …

“That may be so. But if so, it flows as a natural consequence of Google doing business on a global scale, not from a flaw in the territorial competence analysis.”

I know it’s not very Googley to think that a global business has to sort out for itself how to comply with the laws in each country; and as pointed out in my last post, it is much more Googley to tell the nations of the world to stop acting like individual states and get with their one-world program. Of course, it is also very Googley to shape-shift from statelessness to nationalism when it suits their purposes, as seems to be the basis of one of its other central arguments in this case.

Comity

In this argument, Google vacillates from the premise, “You have no authority because we’re nowhere” to the premise, “You have no authority because we’re in California.”  In essence, courts in one country should not issue rulings that offend or disrespect the courts or interests of the country of residence of the individual or company subject to said ruling.  This argument by Google elicited much case law discussion by the judges, and then the following response:

“The only comity concern that has been articulated in this case is the concern that the order made by the trial judge could interfere with freedom of expression in other countries. The importance of freedom of expression should not be underestimated. . . .

It has not been suggested that the order prohibiting the defendants [Morgan Jack] from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation. The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs’ core rights are respected.”

Again, it is encouraging to see a ruling that corresponds with common sense because it seems obvious that a narrow and limited removal of links, material, or even whole sites from search results, ordered in the name of ensuring the rights of an individual or entity, does not violate the principles of free speech. To say otherwise is self-serving hyperbole on the part of the industry, not unlike the hypocrisy we see when these invasive data-mining companies and their “rights” organizations presume to warn us about the perils of government surveillance. Meanwhile, Google’s other major argument echoes another common refrain, and its rejection may have consequences well beyond this case.

Inappropriate Burden on a Non-Party

Google argued that the court did not have the authority to grant an injunction against a non-party to a litigation.  The principle being argued here (and it’s an important one) is that an injunction must be filed against a party in a dispute that is “justiceable” (i.e. can be settled in court) in order to afford the individual or entity the full rights available to a named party.  But after citing several more pages of case law, the decision states the following:

“Where such a justiciable issue exists, however, the granting of injunctive relief against third parties as an ancillary means of preserving the parties’ rights is a well-established jurisdiction of the courts.”

This addresses a central, ongoing debate about the role of web platforms which are often used to facilitate harm even if that is not the intent or design of the site in question.  Can Backpage’s site be held responsible for users advertising the prostitution of minors?  Can Reddit be held responsible for users uploading photos stolen by hackers? Can Google be held responsible for search results leading to infringing, tortious, or other criminal enterprises? In general, the answer to these questions will be no, at least so far as actual liability is concerned. And that’s probably a good thing.

But the relief that plaintiffs like Equustek are typically seeking has nothing to do with holding a site owner criminally responsible or even filing a civil suit against them for any kind of damages.  In most cases, the injured party simply wants the site owner to remove links, materials, (or in this case de-index whole sites) that are facilitating or aggravating the harm being done by some other party.  It’s kind of like saying “I know you’re not the one hitting me, but if you would stop feeding the bully amphetamines, I’d totes appreciate it.”  Some sites are simply run by bad actors, and individuals and entities harmed by them should not bear the undue burden of entreating Google to de-list one page at a time, while the bad actor keeps moving the offending page(s) around his site.

The case of Equustek v Google demonstrates that a very narrow and carefully weighed judicial approach to de-indexing clearly criminal sites can coexist with free speech and of course not break the internet. More importantly, the Canadian court places what seems like a very fair and minimal degree of burden on the site owner, rejecting the all-too-popular claim that sites are to be treated exclusively and universally as neutral, passive entities in these matters.

It will be interesting to see if Google complies with this order and whether or not this case indeed serves as precedent for future cases in which similar arguments are made by other intermediaries.  Equustek gets to the crux of one of the underlying questions of the digital age — the need to reconcile the reality that while these platforms do foster new lines of openness and expression, they also breed new methods for bad actors to do considerable harm, almost by remote control.  I find it hard to believe that we cannot balance these forces in cyberspace by means of any greater legal contortions than are required to strike this same balance in the “real” world.  Or as I think these appellate judges might say, “The internet is the real world. Time to treat it that way.”