Category: Law & Policy

Copyright Doesn’t Restrain Culture – Part II

“Shorter copyright will encourage artists to keep on creating new work, will allow  new art forms (such as mash-ups) and will stop big businesses from relying on large back-catalogues rather than investing in new content.”   — The Pirate Party UK —

The above statement by the UK Pirate Party, which is not alone in advocating a ten-year copyright term, is consistent with the attitudes expressed by Internet-industry backed coalitions and various academics, who claim that copyright is in dire need of “rebalancing” for our digital times.  In Part I of this essay, I tried to stick to refuting only the assertion that copyright has ceased to be appropriately distributive of existing works in the digital-age; arguing that it no more functions as a barrier to access for the consumer today than it did before the technological revolution.  In Part II, I’ll try to stick to the matter of copyright as generative (i.e. as an incentive to create and distribute new works) because we are meant to glean from statements like the quote above that copyright has ceased to be generative in a way that is compatible with the 21st century market.

What is at least helpful about this otherwise naive statement is that it neatly presents three types of creators and three generalizations about each type. It includes an assumption about individual, professional artists; a statement about the value of amateur and new-media creators with an implicit reference to the creation of all derivative works; and it contains a rather rote attack on corporate rights holders, which make easy targets for critics who are ignorant of the interdependence of entities both large and small within the creative ecosystem.  So, inasmuch as I want to find this kind of declaration dismissible, it does at least provide a valid organizing principle for addressing the subject.

Professional Creators

The idea that a drastically reduced copyright term will “encourage artists to keep creating new work” is probably the most offensively flawed statement too-often made in favor of radical reduction of copyright terms.  Because even a casual observation of artists—either contemporary or past—should reveal two basic facts about them:  the first is that some artists are highly prolific while others will produce just one, or only a few, works of note; and the second is that all artist are by nature self-motivated to express all of the work they have within them as long as circumstances permit them to do so.  This is part of what makes them artists in the first place, and it is presumptuous to believe that by recalibrating copyright terms, we would more effectively incentivize, for instance, a novelist to produce a fourth book as if she would otherwise rest on the laurels of her first three because she is so comfortably sustained by the length of her copyright terms.

Even to consider the incentive of copyright in this way is to completely misunderstand the motivation of the artist (or the scholar for that matter) to create works—to say nothing of misunderstanding the foundation of copyright.  With its pretense toward humanism, this view treats the creator as though he is an orange and copyright a machine that, with the right settings, will more efficiently squeeze out the maximum available juice.  (And where else would such an ugly, anti-human idea originate other than the coldly efficient, big-data crucible of Silicon Valley?) The artist creates because he has something to say, and he stops creating when he feels he’s said it and/or when life poses other obstacles to his work. Even if copyright terms were perpetual—and this is neither practical nor constitutional—it is both illogical and entirely rejected by historical evidence, to assume that an artist will stop creating simply because some initial body of work can sustain him financially. To the contrary, it is the dream of most artists to have the freedom to do nothing but produce new works, though only a minority are fortunate, talented, and popular enough to realize this dream.

So, even if consumers are morally comfortable with the idea of stripping the creator’s ownership interest in her labors a decade or so after publication (and I think this makes people sound a bit like jackals), the idea that these restrictions will foster an incentivizing pressure on her to keep producing is rejected both by history and by common sense. Because, the most likely circumstance in which the artist will produce a new—and potentially great—work is one in which  previous work is still paying some consistent dividends through a regime of licensing built upon copyrights. Whether those dividends are modest or millions is commensurate with the popularity of the work(s) and, therefore, fair in market terms. So, the relative wealth or poverty of any particular artist is as irrelevant to the discussion of copyright as a generative mechanism as it is just simply nobody’s damn business.

In fact, it is just as rational to argue that in a paradigm with radically short copyright terms, that once an artist attains a level of financial comfort, his incentive to distribute new works could easily be diminished.  Because the cynical assumption made by the statement above is that the artist only enforces his copyright interests for the sake of money.  Yet, we have ample evidence that many artists—especially the ones who already have money—frequently care more about uses of their works for aesthetic, social, or political reasons rather than financial ones.  As we saw with the issue of expanding compulsory licenses for musical works in remixes and sampling, several well-to-do artists came forth to say that no amount of money would be worth having their works relegated to a permissionless market in which they would be compelled to allow their music to become vehicles for potentially the most vile, hate-mongering speakers in society.

Now, consider how fast—as the pundits like to remind us—our culture is moving thanks to the Internet, and recognize that not all re-use, remix, and redistribution is culturally positive. This is what I called in Part I the “don’t-read/burn” aspect of digital life, which overwrites information very quickly.  In this rapid-remix market, we sometimes risk losing distinctions among unique voices until we end up with what Jaron Lanier calls “one book.”  Copyright terms may seem unreasonably long to some—and I don’t really know what the ideal length should be—but it also happens to be the case that copyright boundaries help preserve uniqueness among voices and works, including the contexts in which they may be used; and these distinctions in themselves are actually generative for the larger community of professional creators.  (This is emphasized in Joseph P. Fishman’s Harvard Law Review paper Creating Around Copyright.)  So, in a paradigm with incredibly short copyright terms, if an author sees that, in less than a decade, her voice may be “remixed” into oblivion, or used by speakers she finds odious, or merely exploited to sell toothpaste, what incentive does she have for putting a new work into the world, especially if she does not need the money?  Perhaps no incentive at all.

Building Upon Works

In Greek mythology, Mnemosyne (Memory) is the goddess mother of the nine Muses.  And I’ve always loved this metaphor because of course neither artistic nor scholarly work is purely divine (or inexplicable) inspiration but is always built upon experiences and what has already been expressed or discovered by other mortals.  And the tension (i.e. balance) in copyright, I believe, is the same tension in the individual creator, who cannot always be sure whence an expression comes — either from his memory, in which he shares in the collective consciousness, or from his transcendent and inexplicable nature that makes his voice unmistakably his own. Because we do know when we’re listening to Jimi Hendrix play the national anthem, don’t we?

And because building upon what has come before is a well-established part of the creative process—because artists themselves throughout history admit to knowing how to steal—the argument is often made that modern copyright tips the scale too far toward a presumption of “originality,” supposedly resulting in a kind of intellectual land grab whereby a minority of creators and corporations now own and charge rents for too much of the fertile ground necessary for creative endeavor. Nevertheless, by some miracle, literally millions of creators can simultaneously and independently produce new works while only very occasionally create conflicts of copyright.  And this is because copyright has proven to be remarkably elastic in its ability to grant ownership to a particular expression without preventing the creation of a vast number of adjacent, similar yet distinct, expressions.

Among professional creators—and not just wealthy ones—a system of licensing (and sometimes just asking permission) continues to support remixes, samples, remakes, and derivatives, while fair use doctrine still provides copyright exceptions for uses of works that have a wide variety of cultural and social benefits.  The professional creator has a number of options within the context of copyright for building upon existing works to create new works, yet the reformers’ rhetoric on this aspect of the creative process would have us believe that volumes of existing works have been entombed and fossilized, untouchable by new creators.

On this subject, it should be noted how often the same, limited examples are cited. For some time, it was felt that Sherlock Holmes naturally “belonged to the commons.” And as of a decision in 2014, the character is now in the public domain while ten of Conan Doyle’s stories remain under copyright. But whether this is right and just on a philosophical level, this change does not mean the market will support any greater abundance of Holmes works than we have enjoyed to date.  In filmed entertainment, for instance, a creator would have quite a challenge to compete with the current modernization starring Benedict Cumberbatch; and the production values in that series far outweigh whatever licensing deal was necessary to initiate the production.  At the same time, consumers have enjoyed (or not) an ample supply of Holmes-inspired works, like the show House, which require no copyright obligation whatsoever.  In short, creators have long been free to create all the clever detectives they can imagine, while only a very narrow definition of Holmes was actually protected.  And we shall see if volumes of great works will now pour forth that could not have otherwise existed with the original source under copyright.

In this same vein, it would be interesting to look at the novels of Jane Austen, which have been in the public domain since before the 20th century, and to compare the modern works based on these books that would have had some copyright obligation against those works inspired by her novels that would have been non-infringing in any way. And then, it would be interesting to look at the total number works that the public seemed to enjoy and want to keep extant.  I may be wrong, but my hypotheses would be that market forces and quality of work are primary factors, and that terms of copyright have very little to do with the success of various Austen and Austen-inspired new works.

Remix and the Consumer/Creator

The new market that supposedly demands substantial reform to copyright is one in which the contemporary audience no longer comprises passive consumers of works but rather active fans, who want to engage with media by touching it, remixing elements into mash-ups, fan-fictions, memes, satirical videos, etc.  While these activities are abundant and can contribute to our collective culture in various poignant and amusing ways, I suspect the the majority of consumers—even the digital natives—are still generally of the old-school, passive variety and that it’s probably an exaggeration to describe the “new consumer” as one who is constantly engaged in remix.  Additionally, while there are indeed millions of UGC expressions uploaded every day, only a fraction of these are actually viewed by more than a handful of people, so the extent to which the massive volume of remixes and mash-ups is contributing to our culture may also be somewhat exaggerated by the copyright reform crowd.

It seems more accurate to say that these new forms of expression represent a combination of both amateur and new-media, professional works; and so it is false to portray all of these derivative forms of expression as non-commercial.  For instance, I just watched one of Anthony Vincent’s videos—appropriately Halloween themed—in which he sings “Thriller” in the style of 20 different famous artists.  Vincent has done several of these videos; he’s freakishly good at the impersonations; the recording and mix sound are professional; and I certainly hope he’s sharing in the ad revenue generated by the millions of hits he deservedly gets for his work.

But the reason I bring up this example—and there are many like it—is that the song “Thriller” is almost certainly covered by broad license agreements that YouTube entered into in 2013 so that a large library of popular musical works may be used on the platform to distribute User Generated Content.  This is just one example of a new licensing model that conforms to the contours of the new market without requiring any change whatsoever to copyright law. And all parties are well served in this case.  The music rights holders share in the revenue on the new platform; YouTube’s interests are preserved along with its advertisers; Mr. Vincent gets to turn his talent into a fresh, marketable expression without any cost or burden to seek a license on his own; and the public gets to enjoy and share his videos.

Regarding works like movie mash-ups, the licensing becomes a little more tricky due to issues like the right of publicity for actors, who can theoretically sue a studio for considerable damages under existing labor contracts, if they feel the studio hasn’t done its job to stop a misuse of their likenesses.  Nevertheless, many of the major filmed-entertainment studios have shown that they understand the social, and even marketing value of the mash-up, and new licensing models continue to emerge in order to foster these works—again requiring no change to copyright law.

The Kids

When it comes to purely amateur, non-commercial (site-owner monetization notwithstanding) expressions—like our kids playing around with media and sharing it with their friends via YouTube—even if some reform to copyright were necessary for this purpose, it is unlikely that length of terms would be the correct area of focus.  As with passive media consumption, many (if not most) of these expressions tend to use contemporary works that would be under copyright, even with much shorter terms; so the claim in the pirate party quote that shorter terms would help foster or sustain these amateur expressions is either purposely or carelessly misleading.  It is also not necessary to broaden fair use doctrine to accommodate these expressions.  Despite the fact that non-commercial users, like Ms. Lenz with her dancing baby video, become the poster-children for reform, the reality is that amateur users are not typically on the radar of major rights holders. The filmed-entertainment studios’ primary focus, for instance, is to remove full versions of their movies and TV shows from platforms like YouTube, and this has nothing to do with new creative works one way or another.

Where a conflict is most likely to occur with various amateur expressions is actually with an individual or independent creator, who simply does not want a work used in a particular way.  But just as copyright has functioned in a pre-digital context, these are case-by-case circumstances that do not inherently demand overhaul of the legal framework simply because there is now a larger volume of uses that can be publicly distributed.  In fact, I suspect most artists don’t necessarily mind—and often rather enjoy—these amateur expressions themselves, even if they might technically infringe; but the artist may very much mind a site owner hijacking their revenue, which is what ends up happening with a platform like YouTube for music. At the same time, when a high-profile use manifests that an artist finds offensive—like Donald Trump using Neil Young’s “Rockin’ in the Free World”—at least a portion of the general public tends to show support for the wishes of the artist, even when the artist might be technically wrong about his application of copyright.

The point is that, overall, it appears that both the amateur and the amateur-turned-pro, who are creating derivative expressions on new platforms seem to be coexisting with current copyright fairly well.  There will always be exceptions, but these exceptions do not demand radical reform or justify chronic vilifying of rights holders, which is unnecessarily divisive.  And that brings us to…

Corporate Creator/Rights Holders

Before responding to the criticism of this class of rights holder in the pirate party statement, I wanted to refer back to the example of Anthony Vincent and YouTube’s broad licensing agreement with the major music rights holders.  Because it turns out to be rather handy for both new creators like Mr. Vincent and for his audience, that such a large catalog of works can be licensed all at once through negotiation among a limited group of entities. If the rights were held only by the original authors of each work, this would be considerably more cumbersome.  Of course, I recognize that a similar result could be achieved by stripping rights altogether from creators and/or drastically limiting terms, but that “solution” circles back to the discussion about possibly harming the incentive to create and disseminate new works, all for the sake of cannibalizing existing works.

Of course, cannibalizing older works is kind of what the pirate party statement accuses the corporate rights holders of doing, and this is a fairly common criticism, even among people who don’t give copyright more than casual attention.  As addressed in Part I, major rights holders of large libraries may seem like hoarders to some, but the financial incentive supported by their ownership rights also makes them rather good stewards of these materials, which can be costly to maintain, as is the case with classic motion pictures.

Still, the accusation here—just like the one lobbed at the individual artist—is that the corporate creator would invest in a greater volume of new works if it were not able to rely for so many years upon the profitable redistribution of its legacy catalog.  Of course, this assumption doesn’t make any sense for two reasons that should be obvious:  the first is that any company, whether it produces automobiles or TV shows or winter coats, must continue to provide fresh offerings if it is to remain relevant in its market at all; and the second is that the revenue derived from large catalogs provides part of the funding to invest in new works.

Presently, one might accuse the major film studios of narrowing their big-screen offerings—namely to tent-pole, franchise products—but this industry response to market changes has nothing to do with the present copyright regime, except of course, for the way in which piracy has played a role. Meanwhile the explosion of some great works being produced for the medium we historically call TV are all backed and produced by corporate creators of various sizes, including the majors.  The volume and quality of these works, which represent a new golden age of the small screen, belies the claim that corporate rights holders are sitting on their fat catalogs rather than producing anything new. At the same time, the primary force stifling traditional investment in an even more diverse range of products is the increased risk incurred by the tech-fueled devaluation of all creative works in all media.

The expectation that media should be free or unrealistically cheap, the willingness of consumers to insist upon this by simply taking what they want, and Web enterprises (both legal and illegal) capitalizing on the free-media feeding frenzy, has far more to do with investors’ flight to safety than anything related copyrights as a barrier.  Naturally, film studios, record labels, and publishers are going to back more safe, big-franchise types of works now that projects, which might previously have been modestly profitable, are more likely to lose money in a market of devaluation.  And because this is just one result of 15 years worth of circumventing copyright, it is hypocritical to the blame this legal framework for any dearth of traditional investment in riskier projects.  Instead, I see artists all the time, who easily would have been backed by a label, studio, or publisher 10-15 years ago, but who are now crowd-funding new work. People may see this as exclusively progressive, though the results are actually mixed for both the creators and the works. But in any case, the copyright status quo is not the catalyst to these market changes, while circumventing copyright has absolutely been catalytic.

Finally, it is absurd, in this context, for the word corporate to be used exclusively as a pejorative, or as shorthand to mean only the big movie studios, publishers, and record labels. As I have pointed out many times, a vast number of works are produced by small groups of venture partners that are all incorporated.  Nearly all filmed-entertainment is produced by independent production companies that are co-dependent with multiple entities, including the big studios. YouTube and Amazon and the advertisers that make Web 2.0 function at all are big corporations. So, what are we really talking about here?

The bottom line is that society wants creators to have careers because they are most likely to produce their best works in markets and systems in which they are able to make careers out of their labors. In this sense, every creator, or group of creators, is a small business in need of some type of investment, and this invariably leads to some level of corporate involvement, all of which is built on a foundation of ownership in intellectual property.  No matter how models and markets may evolve, to suggest that this foundation for creative industry is now—because we are in the digital 21st century—suddenly a wall barring growth of creative industry is such a radical assertion that its proponents should be held to a very high standard of proof.  Or they could stop saying it because it just isn’t true.

Lenz Ruling Isn’t Really About the Little Guy

There are several aspects to this week’s 9th Circuit Court ruling in the “Dancing Baby” case a.k.a. Lenz vs UMG.  Some of the language used by the court will cause a stir among legal experts as to whether or not this decision lays a foundation for rewriting fair use doctrine. But we have a long way to go on that matter, so whatever the Internet cheerleaders are saying about that this week is premature and probably misleading. Still, I’ll let the legal experts take on those larger implications, about which there is much to discuss — as indicated in this post by Devlin Hartline at the Center for the Protection of Intellectual Property. (See also Jonathan Bailey’s piece at Plagiarism Today.)

In practical terms, what the ruling likely does mean for independent creators in the present is that they may feel even more confused about fair use than they already were, and they will have greater fear with regard to enforcing legitimate infringement claims, at least via the DMCA takedown procedure.  And this is what truly galls me about the ruling and all the crowing about it:  the pretense that this a victory for the little guy over the big, bully corporation. Because in reality, this ruling may further disenfranchise individual creators while probably doing very little for general users; but it does at least appear to move the ideological needle toward legal conditions that favor the biggest corporate bullies in the room. So, bravo, EFF!  You’ve won at least a partial victory for the underdog we call Google.  First some basics…

Perception

Organizations like the Electronic Frontier Foundation and Public Knowledge have succeeded in convincing the public that the DMCA notice-and-takedown process is rife with abuse — that copyright holders are constantly stifling free speech on platforms like YouTube by taking down videos without bearing any burden of proof that an infringement even exists.  In part, this perception is fostered by the natural circumstance that it will always be the large, corporate rights holders who send out the majority of DMCA notices — in the tens of millions — and so it is always easy to paint the NBCUs, Sonys, UMGs, Disneys, etc. as the big, bad guys trying to stop all the fun, and perhaps even chill political speech and criticism on the Internet.  Then, along comes a case with the perfect blend of narrative elements — a mother’s personal video, a cute dancing baby, the reclusive artist Prince playing in the background, and a large corporation issuing a takedown notice — to convince people that legal doctrine is in dire need of revision.  So, the EFF spends nearly eight years (so far), litigating on behalf of Mrs. Lenz, presumably in the name of all the other users out there just like her.

Reality

The DMCA notice-and-takedown process is a poor remedy for creators today — one that is essentially available only for corporate rights holders, who can afford costly enforcement departments and software to comb the web for their assets. And even for these entities, it’s an exercise in frustration as infringing posts reappear as quickly as they are removed.  For individual rights holders, like indie musicians or filmmakers, DMCA notice-and-takedown is truly spitting in the wind because, contrary to what the EFF tells you, the volume and rate of infringement dramatically outweighs all capacity to use DMCA as an effective remedy, let alone provide much opportunity to purposely abuse the system. As an example of the kind of ratios we’re talking about here, even a large entity like the MPAA sent out 25 million notices in a six-month period in 2013, and these resulted in just 8 counter-notices (or .00032%).  And in all likelihood, those 8 represent mistakes or judgment calls, but not willful or negligent abuse of the system.

And those counter-notices are a part of the system. The rights holder sends a takedown notice and, if the user/uploader feels the notice is in error, he/she may send a counter-notice to have the material restored on the platform.  This is exactly what happened to Mrs. Lenz’s dancing baby video, which was down for about 30 days (her first counter-notice failed or it would normally have been ten days), and UMG did not file suit in response to the reposting of her video. Instead, the EFF, on behalf of Mrs. Lenz, sued UMG despite the fact that the DMCA notice and counter-notice process worked exactly as it is designed to work.

And, while the EFF may claim that this case is about seeking to remedy DMCA abuse in favor of us users, we should keep in mind that there have been far better examples of actual abuse of DMCA than Lenz, but this story just happens to provide an ideal PR platform from which to launch a campaign to rewrite copyright law (namely fair use doctrine) itself.  But rewrite it for the benefit of individuals or for the benefit of the Internet industry?  That’s one question about this story I think people should be asking.

The Ruling

The salient headline from the court, about which much hay shall be made, is that a rights holder must now “consider fair use” before issuing a takedown notice.  This may have the ring of balance and reason to it, but in practical terms it’s pretty vague. The EFF’s contention has been that UMG willfully neglected to “consider fair use” when issuing the takedown notice on the Lenz video; and if that sounds like a hard thing to prove, it’s because it basically boils down to mind-reading. The logic apparently being applied is that the Lenz use is so obviously fair, that UMG could only have been neglectful in this case. What this court said was, yes, a copyright claimant must “consider fair use” before sending a takedown notice under DMCA and that a user like Mrs. Lenz may sue for wrongful takedown accordingly.  But, the court also stated that a plaintiff in such a litigation bears the burden to prove that the defendant “never considered fair use” prior to issuing the notice.  Moreover, the court rejected EFF’s efforts to define “consideration of fair use” objectively, stating instead that such consideration is subjective.  In other words, the rights holder must “consider fair use” but he need not be particularly good at it. And this is actually good news, because if the legal professionals can argue about the application of this doctrine, how are a bunch of artists and general users supposed to know what the hell they’re doing?

For instance, take the implications of this ruling out of the realm of the EFF vs a big player like UMG; and consider the circumstance of an average user uploading a video that contains the work of a small, independent creator.  First, a potential litigation between these two parties becomes an even more ephemeral exercise in the aforementioned mind-reading (i.e. how does the plaintiff prove that a non-attorney defendant never considered a legal doctrine that has no bright lines in the first place?). But second, it is a ruling that offers no new, practical remedy for either rights holders or general users because most people in either group cannot afford to engage in federal litigation. So, that brings us back to the notice/counter-notice system we have now.

But, independent rights holders, who’ve nearly given up trying to use DMCA as a remedy anyway, may now be just a little more reluctant to enforce their rights via this mechanism, especially if their work is used by an entity that can actually afford to go to court when the rights holder cannot. For example, if Sally Musician sees that Bobby324 has uploaded a video using her song that she wants taken down, she’s probably not going to be too worried that Bobby324 can take her to federal court with a wrongful takedown claim based on this ruling.  But what if the Church of Scientology, which is rich as Croesus, uses Sally’s song in an evangelical video, and she freakin’ hates it; and they didn’t ask permission or pay for a license?  Now, even if she cannot afford to sue, she might also be afraid to use DMCA just to take the video down because this behemoth entity can easily afford to take her to court and claim that she never considered how their “educational message” might be fair use. Yeah, it’ll be a bullshit claim, but she’s still taking a risk of being sued by a big entity just for seeking a non-litigious remedy in the first place.  So, how exactly is that a win for the little guy?

Should Mrs. Lenz’s video have been left online in the first place?  Probably.  But we’re also hardly in Erin Brockovich territory here. Nobody poisoned the groundwater. A video was taken down and then went back up. And considering how often the clarion call for “balance” is sung from the valley of silicon, it is quite something to consider that the EFF is now in a position to potentially collect what must be millions in legal fees from UMG, all because a woman had a video taken off YouTube for a month.

Of course, there’s a principle at stake, right? And that principle is supposed to be free speech. I could do a whole other post on that line of reasoning alone; but again, there are concrete examples of purposeful abuse of DMCA to attempt to silence criticism, etc. and the EFF didn’t invest these labors in any of those cases. So, the principle here is not exactly clear. I think what is clear is that the Internet industry is gunning for fair use itself, hoping to broaden, or even reverse, the doctrine as a limited set of exceptions to copyright protection.  The court didn’t exactly let them go there; and as I say, we’re miles from knowing what this ruling may mean in the big picture.  In the meantime, it’s business as usual on platforms like YouTube, with individual creators perhaps slightly more skittish about asking people to please not steal from them.  Well done, EFF.

Google v Hood Not Even a B-Movie Drama

For someone who clearly doesn’t like Hollywood, Emily Hong, policy wonk for New America’s Open Technology Institute*, is determined to pitch an over-the-top narrative about AG Hood v Google that is so divorced from reality that I don’t think Luis Buñel would know what to make of it.  Reposted on Slate, her title and basic plot, which portrays Google as underdog — fighting not only for itself but for the sanctity of the Internet — against the juggernaut of the MPAA in cahoots with states attorneys general, begs the audience to suspend not only disbelief, but the verifiable evidence that Google’s reach into government is greater by orders of magnitude than several other whole industries.  So much so, that when faced with indictment in 2011 by the DOJ for its role in illegal pharmaceutical trafficking, the corporate executives of Google were able to buy themselves a non-prosecutorial settlement for the meager sum of a half billion dollars.  Thus, the focus of AG Hood’s recent investigation had been to confirm whether or not Google was in compliance with that settlement — i.e. that the company was not still knowingly profiting from illegal trade.

That the MPAA would have an interest in this investigation is no surprise, even though copyright infringement was among the least of AG Hood’s concerns.  Still, ever since the release of emails leaked during the Sony hack, Google and its translucent PR network have attempted to spin the intent of Hood’s investigation — which 39 other AGs have now joined — into a conspiracy story in which the MPAA was effectively calling the shots and using the AG as a puppet to pursue the studios’ interests.  Meanwhile, it should be noted that Google does not deny that the company plays a role in mass infringement (and even monetizes it), but that any measures it might take to mitigate the problem would unavoidably lead to a “less open” Internet.  And so, like any good/bad movie plot of this nature, why do the conspiratorial MPAA want AG Hood to pursue Google?  To take over the world, of course.  Only in this case, it’s more like take over the Internet in order to censor it.  Thus, in an homage to B-movie villains everywhere, Hong writes:

“Beyond its melodrama, Google v. Hood also embodies a deeper ideological clash that persists between those who believe that Internet content must now be technologically and legally controlled and those who argue that it remain as open as possible in the service of free expression. Organizations like the MPAA and its analogue in the music industry, the Recording Industry Association of America, advocate for strict control, while technology companies (many of whom are the online intermediaries who would likely bear the costs of any control regime) and civil liberties activists want to preserve an unhindered atmosphere.”

Believe what you want about the players, their actions, and their motives.  The details and  misrepresentations are so out of proportion now, it’s futile to even go there.  For the sake of argument, then, let’s assume companies are companies, all morally or amorally equal, if you will.  Yes, the motion picture industry would like to curb piracy; and yes, Google would like to avoid taking responsibility (financial or otherwise) for its role in the problem.  That’s business.  We get that.  But the idea that the story of Hood v Google is an epic tale of good vs evil — about the forces of openness vs the forces of censorship — is preposterous.

When Google ponied up its half-billion-dollar settlement and, in theory, stopped advertising against illegal drug trafficking, did you feel a chill in your right of free speech?  Or when millions of Americans applauded Reddit for its recent ban of the racist subreddit CoonTown, did you sense so much as a cool breeze warning you not to speak your mind on Facebook or Twitter, or to search for some news item somewhere on the Web?  And while an “open Internet” sounds like a good thing, it should not be taken as gospel that whatever puts an onus on Google will “close” the Internet.  To the contrary, we have seen in recent months both litigation and policy decisions in the U.S. and abroad, which demonstrate that Google and others can be forced to mitigate harm or conform to anti-trust regulations without affecting our rights in the slightest.  In fact, for the moment, I feel entirely free to say that I believe this narrative Google and writers like Emily Hong keep spinning is complete bullshit.  And I have to wonder if that freedom is honestly best served by just letting Google do whatever it wants with complete immunity.

*As stated in the article this organization includes Google executive chairman Eric Schmidt on its board.