Category: Law & Policy

Cybercrime and Terrorism Sponsored by Your Candidate

If you were watching TV and a show came on called How to Hack Computers and Commit Credit Card Fraud with a lead commercial from Bank of America, you might think there’s something amiss.  Like, where does the network get off airing a show specifically teaching people how to commit crimes?  And did BofA really mean to be the sponsor?  If not, they must be pretty pissed off at the network.  And if they did mean to be the sponsor, we consumers should be pretty pissed off at the network and the sponsor, right? That’s how the world of media and advertising works. Except on YouTube.

Digital Citizens Alliance released a new report last month covering a familiar theme with an election-year twist.  As the organization has reported in the past, advertisers who spend money to place ads on YouTube are essentially cheated out of some portion of their media buy when their ads appear in conjunction with videos selling or promoting criminal or terrorist activity.  I and others have cited examples of mainstream American brands unwittingly sponsoring ISIS recruiting videos or clips teaching people how to deliver malware to steal identities and data.  But this new report by DCA called Fear, Loathing, and Jihad calls attention to the fact that all of the current presidential campaigns are in one way or another sponsoring these criminal or terrorist-produced videos.  From the report:

“How does the Kasich campaign, whose credibility is based on fiscal aptitude and efficiency, feel about their ads showing up next to a video by those actively committing financial fraud?”

“Support from young voters is the main reason why Senator Bernie Sanders is able to challenge Hillary Clinton. Why would he want a campaign ad showing up next to a video demonstrating how to “slave” the computer of a young male victim?”   

Political ads are a variation on the larger theme of poor-quality placement that affects all advertisers in the digital market, but DCA is not wrong to point out the uniqueness of these dichotomous pairings when we see American presidential candidates effectively hosting videos calling for jihad or selling fake IDs and other contraband. Moreover, in several cases the candidate’s ad buy may actually be putting money into the pockets of the criminal video makers. So, it’s not farfetched to say that you can donate twenty bucks to your candidate and that money can end up in the pocket of some homegrown, would-be jihadist by way of Google AdSense and the YouTube Partner program. Unfortunately, it seems that Google is about as diligent in vetting YouTube Partners to participate in ad revenue sharing as it is in mitigating copyright infringement on its platforms.

According to Google’s own Terms and Conditions, a prospective Partner must upload “advertiser friendly content”, and here’s what the company says might be considered unfriendly:

Content includes, but is not limited to:

•Sexually suggestive content, including partial nudity and sexual humor

•Violence, including display of serious injury and events related to violent extremism

•Inappropriate language, including harassment, profanity and vulgar language

•Promotion of drugs and regulated substances, including selling, use and abuse of such items

•Controversial or sensitive subjects and events, including subjects related to war, political conflicts, natural disasters and tragedies, even if graphic imagery is not shown

Now, my own read of those conditions would want to to see them applied with considerable latitude given that plenty of high-quality satire, news reporting, and entertainment is likely to implicate any number of those descriptions.  But if Google is not able to, for instance, separate the combat-related humor in videos made by the veterans group Ranger Up and an ISIL recruiting video—or a video made by some jerk showing people how to invade a girl’s privacy through her computer—then maybe those conditions are really not conditions so much as they’re just a bunch of words Google universally ignores.

DCA states that when their reports and the news media have brought attention in the past to this same issue, YouTube has made an effort to remove ads from many offending videos, but the report also implies that this type of action is a band-aid in response to momentary pressure.  Just like infringing material is restored as fast as it is taken down, ads continue to be linked to videos that no brand—let alone any political candidate—would choose to sponsor.

Although advertisers do have a measure of control in setting parameters to properly target their ads, the automated nature of the system is nothing like the control advertisers have with traditional media buys.  As the report states, “Let’s be clear: Google is not giving advertisers the opportunity to veto undesirable videos, but to opt-in and minimize the possibilities of ads showing up in undesirable places.” As we see in the context of rights holders and the DMCA, Google’s own financial incentive is grounds to play ignorant and incapable and to shift the burden to everyone else.  Again, to quote the report, “Right now, the best thing you [campaign operative] can do is report the videos to YouTube, which may pull these videos down. Google has deputized all of us to do the work it can’t…or won’t.”

Speaking of incentive, why the leadership of Google does not display the basic human decency or corporate responsibility to delete these videos as clear abuses of their service is inexplicable beyond basic greed.  Because let’s be grown-ups:  free speech doesn’t even enter this conversation. Speech does not protect criminal activity, incitement to violence, or training in the commission of crimes; and it sure as hell does not protect the video productions of violent extremists whose agenda fundamentally betrays the natural rights philosophy upon which free speech is predicated. And more prosaically, any private company is within its right to provide or not provide content based on its own internal judgments without violating free speech.  But there’s the rub.

It seems that YouTube is in sort of a logical pickle, trapped between its safe harbor status from liabilities like copyright infringement and what could become a growing demand to guarantee quality impressions to the advertisers who pay all of the company’s bills.  In order to avoid liability for the millions of user-caused copyright infringements on the platform, YouTube has to maintain that it is blind to the content on its servers prior to a specific notification. Meanwhile, the advertisers (and frankly the public) would be better served if YouTube were to make a serious effort to remove videos that are clearly dedicated to promoting or abetting the commission of crimes and acts of terrorism.  But the more YouTube exerts this kind of editorial control, the thinner their veil of ignorance becomes, which can then expose the company to liability for copyright infringement and other abuses of its platform.  Meanwhile, as the monopolistic YouTube hovers in this limbo raking in millions, the advertisers, rights holders, and public are not well served.

The DCA report states that this year the presidential campaigns will spend $1 billion in digital advertising, with Google, Facebook, and Twitter receiving most of that revenue.  For perspective, the report explains that if Google takes the same percentage of that billion as it made from all digital US advertising in 2015, it will earn $387 million from campaign spending alone. Meanwhile, the company that claims to provide the tools of political transparency to the public is anything but transparent on this matter according to the report.  “We have no idea how much Google and YouTube make from videos marketing illegal or illicit activities,” the report states. “Google has fought back against elected officials and regulators who’ve asked questions about the money. So far, the company has been successful at keeping its numbers a secret.” Maybe the point at which political campaign dollars are being split 45/55 between Google and terrorists is the moment when federal regulators decide to get serious.

Astroturf Organizations Typically Hysterical on DMCA

As the deadline approached for public comments to the Copyright Office in anticipation of its review of Section 512 of the DMCA, TorrentFreak reported yesterday morning that 50,000 “citizens” chimed in to protest DMCA “abuse,” apparently enough to “crash” the government’s servers.  Assuming the crash did occur, it’s probably an endorsement for Copyright Office modernization, but to the matter at hand, if there are 50,000 actual, non-attorney citizens who understand DMCA, I’ll eat my hat and the box it came in. This is more SOPA-fying, scare-mongering bullshit, and I really wonder how many times people are going to fall for it.

The TF article quotes this statement by Tiffani Cheng of the Google-funded organization Fight for the Future: “The DMCA affects all Internet users and they should have an opportunity to express their concerns with the ways content is censored from the Internet, causing damage to free speech that can’t be undone.”

To describe DMCA as a tool for censorship is a gross exaggeration that enables major OSPs (Online Service Providers) to use individuals as human shields to cover their profit interest in keeping DMCA ineffective for rights holders. It’s not that DMCA abuse does not occur, but the comparatively few incidents in which an individual or entity purposely misuses takedown should not be allowed to mask the enterprise-scale motives for major OSPs to support, promote, or even condone mass infringement.  That was never the intent of the DMCA.

Millions of copyright stakeholders know first hand that the OSPs have been incentivized by the terms of the DMCA to fabricate an illusion of ignorance with regard to obvious cases of infringement hosted on their platforms, promoted by their search engines, or supported by the access they provide.  Simply put, in order to retain the safe harbor (i.e. neutral) status, which service providers consider essential to their existence, they are supposed to meet certain obligations according to the statutes.  In many cases, large providers either fail to meet these conditions outright (as we saw in Cox v BMG) or they push the boundaries of reason and good faith when it comes to what’s called “red flag” knowledge of infringing or other illegal activity making use of their services.

For instance, among the conditions an OSP must meet to retain safe harbor under DMCA is that it may not benefit financially from infringement.  So, when a user uploads a whole TV episode, let’s say, to YouTube (which nobody disputes is infringing) and YouTube generates ad impressions during the period when the file is online before the rights holder takes it down, that’s revenue.  Why is that transaction not a clear violation of the statutory conditions, which would appear to make YouTube liable for the infringement rather than the neutral party it claims to be?

For obvious reasons, OSPs do not want to change the status quo.  And to be clear, rights holders are not looking to end safe harbor protections or to seek new means of taking down more material that is non-infringing; they have enough challenges just trying to keep a lid on the large volume of undisputedly infringing content.  And make no mistake, the major OSPs could give a damn about your free speech or your remix videos beyond the extent to which defending those things makes them money. (One could make far more compelling arguments that these service providers stifle speech through manipulation of their algorithms than all the DMCA abuse that’s ever been cataloged.) So, with regard to DMCA, these service providers would like to perpetuate the game that earns them revenue and grows their market share without having to bother with the legitimate rights of creators.

Even a Google-funded report released last week on DMCA notice and takedown procedures, conducted by researchers at Berkeley and Columbia Law, indicates that the majority of errors and abuses of the DMCA takedown process occurs among smaller and mid-sized rights holders, OSPs, and plain bad actors.  I may write a more detailed discussion of that fairly large report in a future post. But I mention it here because not even research—at least the anecdotal portion of it—slanted in favor of the internet industry appears to really support the assertion that DMCA takedown is widely abused as a tool to censor your “tweets and videos.” This is a typically hysterical claim that sounds sillier with each passing day that trillions of online expressions are exchanged without incident.  Meanwhile,  the  DMCA remains an inadequate tool for most rights holders of all sizes to mitigate large scale infringement and outright piracy of their works.  And these uses are still not free speech.

Dept. of Commerce Creates Board of Inevitability

Yesterday, Commerce Secretary Penny Pritzker announced the official launch of the Digital Economy Board of Advisors, presenting seventeen volunteer professionals described in a press release as a “diverse group.”  And while it’s true that this diversity does represent the full spectrum from tech industry power players (YouTube & ATT) to tech industry startups (Lyft & Handy), Secretary Pritzker did not see fit to make room at the table for even one individual representing the core copyright industries.  It’s an unfortunate omission, not only for the more than five million people who work in the creative sectors, but for the country as a whole. After all, it is the creative workers who have leading-edge experience with some of the pitfalls of the so-called digital economy, so maybe there’s something to be learned by having one or two representative voices in the room.

Granted the digital revolution is already reaching beyond the Internet of Content into the Internet of Things, but Content is still the reason the Web grew the way it did, and Content is still one of this country’s biggest employers and biggest exports.  The number-one user of bandwidth worldwide is Netflix, and each of those programs we so easily stream and binge-watch represents hundreds of jobs—jobs that are threatened by another big user of bandwidth as an estimated 24% of all Internet traffic is directed at criminal sites hosting infringed movies, TV, books, video games, etc.

When technologist Jaron Lanier described the creative industries as the “canary in the coal mine” of the digital economy, it was among the more prophetic statements most people ignored.  Former Secretary of Labor Robert Reich has alluded to the possibility of “uncertain work” for most people within a decade.  We read accounts of college-educated millennials trying to navigate the instability of what we now call the “gig economy”, which directly affects marriage and birth rates, which directly affects housing and quite a few other major sectors.  So, it is dismaying to note that Secretary Pritzker seems to have filled her board with several digital economy cheerleaders but almost no representatives from industries that employ large numbers of people who are being told to “adapt” to the new economy, which in some cases is outright stealing from the “old” economy.

I know YouTube is very sparkly, but the platform with a billion viewers and about $4 billion in revenue is still not profitable, employs fewer than a thousand workers, and is exclusively a vehicle for advertising, the value of which can only decrease in an economy that doesn’t grow sustainable jobs where consumers can afford competitive choices.  It is disconcerting to think that the Commerce Secretary may not consider the cannibalistic nature of the digital economy if she is uninterested in hearing from some of those who are being eaten.  As many expert observers have noted, the technological transformation this time is not necessarily a case of creative destruction so much as it may be one of destructive destruction.  Certainly, this continues to be true for the core copyright industries.  As noted in a recent post, when Google directs users to an illegal platform for watching a movie, that’s not commerce; it’s the opposite of commerce.

Historically, democrats are pro union, pro labor, pro civil rights. As such, the Obama administration should take note of the way in which the major Silicon Valley companies have been antagonistic toward intellectual property rights as there is a direct philosophical line from disregarding one individual’s copyright (or patent) to disregarding millions of individuals’ labor rights. But I fear the Obama administration, of which I approve in many ways, has drunk a bit too much Silicon Kool-Aid.  From the number of former Google execs working in the administration to the appointment of Eric Schmidt as head of a new DoD advisory board, and now the composition of this board at Commerce, it’s hard not to feel a sense of inevitability—that one industry’s world view is quickly becoming national policy.  Not only is that no more desirable than excessive influence from oil or banking or any other traditional industry, but the Silicon Valley crowd—although they do have some cool and audacious ideas—is also amok with zealots and egomaniacs who’ve made personal billions on businesses that are neither profitable nor job-creating.  To the contrary, many of them are job-destroying, which leads to the question as to whether or not the digital economy is an economy at all.  Surely, the fact that digital technology will have a profound effect on commerce is inevitable, but how we choose to manage it should not be.