Category: Law & Policy

Is Google simply above the law?

Google Shell GameIncreasingly, in the United States, the answer to that question seems to be yes.  As Exhibit A, I offer this latest anecdote from Ellen Seidler at VoxIndie, who describes the experience of one indie film distributor who found an entire film uploaded to YouTube by some smug little snot with the handle Free Movies. The film distributor had used its ContentID account to “block uploads of certain lengths in its territories,” writes Seidler, but Free Movies decided that the distribtutor doesn’t have the right the block the film in any context whatsoever.  Seidler describes the situation as follows:

“S/he [Free Movies] stated the reason as being:  Approval from copyright Holder is not required.  It is fair use under copyright Law. The user also added a note: ‘I don’t need to explain.’

Despite all the testimony at last week’s roundtable about fair use–and how copyright holders seek out [sic] to punish those who claim it using malicious takedowns–it’s worth pointing out, yet again, that for every legit “fair use” claim, there are also false, and rather malicious, abuses of that defense.  It’s a fact conveniently overlooked by the anti-copyright apologists.”

YouTube restored access to the entire film (which would never ever be a fair use!), the distributor’s claim was then reinstated, and Seidler rightly points out that if Free Movies files a counter notice, that’s the end of it.  These indie filmmakers don’t have the resources to files suit in federal court, so Free Movies and YouTube can not only get away with the infringement, they can even monetize it together—earning revenue from the labor of other people.  Because freedom.

But if Google is going to support—and even encourage—this kind of behavior on its platforms, and if Congress isn’t going to fix the law to give rights holders a fighting chance, then let’s at least be honest about what this mess really is.  Google should simply instruct its users to file responses and counter notices invoking the words hocus-pocus or swordfish or expelliarmus, and then these infringing files can remain on YouTube. Because fuck you.

Why bother even bringing up a complex legal doctrine like fair use? Clearly, Google’s intent is to ensure that users like Free Movies remain wholly illiterate about the principle; and the independent creators can’t afford to go to court anyway.  I’ve argued in the past that fair use is not just an incantation that makes infringement claims go away, but maybe I’m wrong.  Because Google is apparently above the law. So, if that’s the new reality, lets be honest about it and not add insult to ignorance by pretending a legal principle is even being applied in such a case.

As Exhibit B, Conor Risch, writing for Photo District News, describes Google as “too big to sue,” even for a relatively large rights holder like Getty Images.  Ever since Google changed its Image Search format, Getty—the largest stock-photo library representing thousands of photographers around the world—has seen dramatic loss of traffic to its own pages.  Traffic that Google has effectively hijacked.

Prior to the 2013 change, Google Image Search results produced thumbnails of most photos, and when a user clicked on an individual image, he was directed the to the web page hosting that image.  But never content simply to “organize the world’s information,” Google likes to own the world’s attention in order to drive ad revenue and mine data.  So, in 2013, they changed Image Search to provide larger, high-quality images that do not link directly to the owner’s web pages. Instead added a “Go To Web Page” button, and this additional step combined with posting  high-quality images has resulted in a sharp decline in traffic to Getty’s site.

As has recently been reported, Getty is pursuing Google in the EU, where the search giant faces an ongoing and wide-ranging anti-trust investigation.  Getty views Google’s Image Search practices as implicating both copyright and anti-trust law, but even though both companies are based in the US, Getty’s avenues for relief domestically are presently very narrow.  After extensive investigation into the practices of the search giant, the US Federal Trade Commission voted unanimously in 2012 not to pursue Google.  This is in dramatic contrast to the European Commission, which may be about to impose a record-breaking fine on Google for “anti-competitive search practices,” reports Andrew Orlowski for The Register. With regard to bringing a copyright infringement claim against Google, Getty’s General Counsel Yoko Miyashita states, the search giant would simply “wipe us out from a cash perspective” by dragging out the case for years.

Where the copyright and anti-trust issues converge is when the company that is too big to sue is also the company that is too big to ignore. As Miyashita explains in the Risch article, “Are there copyright issues? Yes. But the problem is not just copyright. It’s their market dominance and their position in search where they can circumvent any of the copyright protections that legislatures or courts may provide.”

By way of example, Miyashita cites legislation passed in Germany and Spain that was designed to protect news publishers in those countries by requiring compensation for Google’s use of news snippets. Google’s response?  De-indexing those publications from its search engine—a practice that Google’s own spokespeople and attorneys will typically claim “chills free speech” whenever a plaintiff seeks an injunction to de-index links or sites that are clearly infringing intellectual property or violating privacy.  The same company that will insist that access to the web is a universal and inviolable civil right will gladly remove entities from its near-monopoly search engine when it has a buisness interest in doing so.

Technically, even under the DMCA as it is written, the above-mentioned FreeMovies is supposed to lose his/her YouTube account as a repeat infringer.  But no.  Such a remedy is labeled as “censorship” by Google and its Kool-Aid drinking buddies at EFF, et al. But it’s okay to remove news organizations from search when it serves Google’s bottom line.  Again, if this is how things are, if Google is simply above the law, then let’s abandon the nuanced language of law altogether.  Let’s just say it’s Google’s internet and they can do whatever the hell they want with it.

Stay Down Provision Will Not “Entrench” YouTube Dominance

This is an argument that’s been around for quite a while.  I first stumbled upon it in 2013, found it again in the recently published report by Berkeley and Columbia researchers, and I understand it came up again in round-table discussions held last week at the 9th Circuit Court of Appeals regarding Section 512 of the DMCA.  The premise is this:  that if rights holders demand a takedown provision, and this in turn requires technological measures to achieve, then such measures will entrench the dominant market positions of sites like YouTube because only giant companies will be able to afford to deploy these technologies.  It sounds like a reasonable concern as long as we ignore the realities of the networked economy.

YT GorillaYouTube’s dominance is created by market forces and the general tendency of a networked economy to foster monopolies.  As discussed several times on this blog, and in numerous articles from multiple other sources, it’s a natural function of the digital market to shrink competition in certain lines of business.  Once a platform acheives critical mass and offers a service like social video, there is not only no particular need for consumers to seek a competitior, there are clear disadvanages to choosing a competitor.  For instance, one can host video on a service like Vimeo, which offers many great features, but if one needs to drive traffic and improve SEO, there really is no substitute for YouTube, especially because of the way in which the platform is intertwined with Google’s dominant position in global search.

These are market factors that have no direct relationship with provisions like YouTube’s Content ID or other copyright compliance (or lack thereof) policies and technical measures.  If anything, it is astonishing that self-proclaimed public advocates can pretend to be criticizing YouTube in this regard when it is that company’s bad-faith application of DMCA in the first place which enabled it to gain the monopoly position it now enjoys. YouTube brazenly acquired its marketshare with an infringe-now/sort-it-out-later strategy; and now its representatives, in the guise of defending competition, have the nerve to suggest that technical measures to achieve stay down will only “entrench” this ill-gotten dominance. So, if we’re going to debate any technical measures that may be required for a YouTube-size OSP to fulfill a stay down provision, that discussion should only proceed based on an honest appraisal as to why certain OSPs are already monopolistic and may remain so regardless of any new requirements to protect rights holders.

Additionally—and I’ve raised this issue before—we saw in BMG v COX that new technical measures are not the only approach to acheiving better compliance with the intent of DMCA safe harbor provisions.  As the law stands today, in order to maintain the safe harbor shield, an OSP must meet certain condions, and among these is the maintenance of a policy whereby a repeat infringer will ultimately lose his or her account with the OSP.  But ever since passage of the DMCA, OSPs, bloggers, pundits, and organizations like the EFF have been playing a semantic shell game with rhetoric like What is a repeat infringer? And while it is true that the DMCA does not specify the exact terms of a repeat infringer policy, the details revealed in BMG v COX demonstrate just how absurdly “good faith” can be abused by a service provider.

As described in a previous post, COX’s “repeat infringer” policy was what we might call Fourteen Strikes and You Get a Very Stern Warning.  As a result of this clearly insufficient policy, the judge in the case rather sternly rejected COX’s initial safe harbor defense and allowed the trial to proceed, in which BMG ultimately prevailed.  The reason I bring up COX is that the failure of DMCA to protect rights holders in this instance does not implicate new technical measures at all. Instead, COX suggests that the language of the law is too broad and can, therefore, be willfully misinterpreted by an OSP as to undermine the intent of DMCA.  BMG had to go to court to demonstrate that COX was not anywhere close to meeting its obligations to provisions that were meant to be a compromise measure designed to avoid litigation in the first place.  COX itself does not concern a stay down provision for an individual file, but the repeat-infringer issue, it seems, may be viewed as a parallel subject for proposed statutory revision.

And so the circumstance we have now—especially the story that leaks out into the public dialogue—is a double-lie.  Part one is that new technological measures are the only way to mitigate repeat infringement of individual files or by individual users; and part two is that these technical measures can only “entrench” monopoly OSPs despite all evidence that these monopolies may persist due to market forces.  As policy-makers consider revision of Section 512, I believe it is worth noting the fundamental dishonesty of these arguments and to ask why, after so many years, they remain lead talking points of the internet industry.

R Street & Techdirt Dissing Prince

“R Street is a free-market think tank with a pragmatic approach to public policy challenges.”         — R Street About Page —

If one is going to comment on public policy, then one ought to make an effort a) to understand the nature of a given topic; and b) to present facts instead of fiction.  In this regard, R Street might want to be careful about republishing articles from the blog Techdirt, as it did last week with this Op Ed by Zach Graves all about what Prince did wrong in the management of his career.

Graves notes that although Prince was a musical genius, he was one who “…never quite found the right approach when it came to licensing his music for redistribution—in spite of the fact that he sold over 100 million records, placing him among the best-selling artists of all time.”  If it seems as though the second half of that statement contradicts the first, that’s because it does.  When you combine terms like musical genius and best-selling artist, it takes some chutzpah to presume to know best—in a post-mortem analysis—how the artist in question might have made wiser choices.  In fact, Graves is working overtime trying to shoehorn Prince into an online market the artist rejected. He writes, “ … his fans were left in an odd position, on the news of his death, of being frequently unable to provide links to Prince’s massive oeuvre.”

Speaking as a representative of the 80s, and of those who have been Prince fans since he first emerged, that statement is not only surprisingly disrespectful to the wishes of a beloved artist who just passed away, but it lays bare a mindset that actually believes these fleeting moments on social media are of much greater emotional and cultural value than they really are.  The shared sense of loss among Prince’s fans is not diminished because a friend does not post “Little Red Corvette” on Facebook via YouTube.  Micro-moments like these are fine, occasionally interesting, but are utterly forgettable because of the very nature of the interface itself. Our relationships with Prince’s music, as with all music, are based on associations his songs have with tangibly profound, wonderful, painful, or intimate moments in our lives.  And if the next generation doesn’t form these same types of realtionships with music, then they probably won’t relate to music at all.  Meanwhile, the fact that YouTube & Co. were deprived of a few million advertising impressions they would have sold on the trending of Prince’s death is exactly what he wanted to deny these companies.  He saw through the lie that the OSP’s revenue model has anything whatsoever to do with his music or our love of it. And he was absolutely right.

It is fairly well known that Prince spent considerable effort and resources during his career in order to gain and maintain control of his work.  Quite simply, he did not like anyone dictating how, when, or where his music ought to be distributed—not Warner Music 23 years ago, not YouTube last month.  So, the fact that Graves chose to compare and contrast the market potential of Tidal (which licensed Prince) with Spotify (which Prince rejected) is entirely irrelevant, whether Graves’s math in this case is sound or not.  Prince was a Mozart.  And it’s rare to see that kind of genius without the individual also being fiercely proprietary about his work.  And although Graves acknowledges that Prince’s decision to license exclusively through Tidal “may have been a reflection of his proclivity to assert tight control of his brand,” he remains steadfast in his bias when he writes “…making music less accessible poses serious challenges for artists and consumers alike.  For one thing, as English singer/songwriter Lily Allen explains, it will reinvigorate incentives for piracy.”

News flash:  Prince did not disappear into obscurity despite his rejection of these “free” platforms.  Yet, somehow, Graves believes the “lesson” we are supposed to draw from Prince’s legacy is that this hugely successful, influential, and universally-respected artist was fundamentally wrong, while the new-economy sages at Techdirt and R Street are right. Their logic says that if the artist chooses not to be fractionally exploited by a YouTube or a Spotify, then he naturally deserves to be fully exploited by outright piracy.  Put that way, it sounds more outrageous, right? But that’s essentially what Graves and others are saying.  Prince told that proposition to go screw itself, and maybe that’s the real lesson he leaves behind.

Of course, Graves actually reprises the blame-the-artist-for-piracy theme because he wants to point readers to a remarkably obtuse statistic presented by Techdirt founder Mike Masnick’s very own, brand-new “think tank” called Copia.  The stat says that, “55% of 18-29 year-olds pirate LESS when offered a free, legal alternative.”  Wait for it. It’ll happen…

I’m no longer amazed at the capacity some people have for presenting bad news as if it were good news.  Because somehow Copia et al think nobody will notice that the truly stunning fact revealed by this stat is that 45% of the demographic will continue to pirate as much as ever no matter what free, legal alternatives are available.  But creators should feel molified by the prospect that the other 55% of the market will pirate less!  It is certainly indicative of a Kool-Aid narcosis that Techdirt, Copia, and R Street would even present these data with a straight face. After all, if one were to provide the same market research to the dumbest investor on earth, no matter what the business sector, he would tell you that no investment will be forthcoming.  Try pitching investors and telling them that 45% of the target market is guaranteed to steal from you while 55% of the market will only steal some from you, and watch what happens.

Perhaps most importantly, R Street in particular should be held accountable for republishing an article that completely misrepresents the facts in what is commonly called the “dancing baby” case.  Graves writes …

“Famously, Prince, via Universal Music, was behind the “dancing baby” DMCA lawsuit, which featured Prince’s “Let’s Go Crazy” playing faintly in the background of a short clip as a toddler danced. Ultimately our friends at EFF, who were representing defendant Stephanie Lenz, prevailed on their fair use claim. In 2013, EFF awarded him their “Raspberry Beret Lifetime Aggrievement Award” for “extraordinary abuses of the takedown process in the name of silencing speech.”

Setting aside the relatively minor detail that Prince himself was never directly involved in this case, the most important fact is that EFF sued UMG after the Lenz video was actually restored to YouTube via counter-notice procedure; and nobody ever sued Stephanie Lenz–at least not pertaining to this matter.  The reader is free to review the facts of this eight-year litigation and decide for himself whether the temporary takedown of the “dancing baby” video represents “award-winning” abuse of DMCA—or if perhaps the EFF chose this case because it would inevitably lead to misrepresentation exactly like the quote above.  “Prince sues mom and baby” makes good drama, but it just didn’t happen.  And to say that it did in the immediate aftermath of this artist’s passing is as rude as it is irresponsible.

As for Zach Graves’s concern that Prince’s music may not “reach a new generation of fans” due to its absence from certain free platforms, I’d like to tell him not to worry.  Prince’s work has touched millions of people and influenced thousands of other musicians around the world. It will transcend generations in spite of what web platforms have done to culture and memory itself.  At the same time, although YouTube’s predatory and monopolistic strategy may position its platform as “essential” in a certain sense for musical artists, one must ask if this winner-take-all outcome is the kind of “free-market pragmatic approach” R Street policy hopes to support.  The idea that Prince’s music needs YouTube in order to live on in our cultural memory would be a quaint conceit if it were not the kind of arrogant proposition that has hypnotized many policy thinkers by means of ceaseless repetition.