Category: Law & Policy

Orlowski Details Google’s Silencing Miss. AG

As a follow-up to my last post about Google churning the Sony hack into SOPA suds, I wanted to call attention to this detailed article by Andrew Orlowski in The Register.  In that last piece, I refrained from enumerating Google’s conflicts with the laws of several countries, including our own.  I am not an investigative journalist and don’t maintain a detailed diary of those accounts, though I certainly read about many of them.  I also refrained from speculation as to Mississippi Attorney General Jim Hood’s rationale for “taking a break” in his investigation since Google has filed suit against his office; but as Orlowski points out, we should not overlook the fact that the search giant is worth more than Hood’s entire state or that the suit itself looks like a neatly-coordinated PR move.

“The innuendo this time was clear: state AGs were colluding to “break the internet” all over again. It ignited the same persecution fantasy that had fuelled [sic] the SOPA protests (“Let’s get rid of this legislation so we can start enjoying culture again,” wrote one Berkman scholar during the anti-SOPA campaign, somehow implying he couldn’t play music, go to the theatre or watch a movie).

Then, after the stories had circulated, quite coincidentally Google dug into its pockets and launched a highly unusual lawsuit against the attorney general of America’s poorest state.”

Most importantly, Orlowski emphasizes that Hood’s interest in Google hardly begins or ends with the company’s role in copyright infringement of properties belonging to Hollywood studios.

“What Hood wants to know is how Google is complying with a legally-binding settlement. And he’s curious to know whether advertisers are being skimmed – as whistleblowers have long alleged. This is certainly of interest to small businesses, typically “mom and pop” shops, that use Google’s Adsense. That’s the only area where one can argue Hood “opens up a new front” against Google – and he’s seeking more than compliance. And, given the economic interests of poor Missippians and the fact the USA is reluctant to apply fraud or consumer protection laws against Google, it’s hard to see why he shouldn’t.”

If anything, the copyright holders’ interests are among the lower priority concerns for authorities that have been investigating Google, appropriately taking a back seat to fraud, illegal drug trafficking, and human trafficking.

“Have a look how, and where, copyright figures in his 79-page Google subpoena. Just three press releases, none of which relate to copyright infringements, are on the Mississippi website. It’s the very last item on the list. It’s a sub point.”

And in case you don’t read the article, I have to quote Orlowski’s summation in which he makes the most important point:

“My puzzle is, why do intelligent progressives unthinkingly sign up to this agenda? The consequences of Google’s success in silencing Jim Hood are that corporate power cannot be restricted by one of democracy’s main mechanisms for reining it in. Google and Facebook are increasingly resembling “suprastates” to whom national – and perhaps international – law doesn’t apply. But if you think that replacing laws with a free-for-all leads to anything other than the strong crushing the weak, then I have a bridge to sell you.”

See Andrew Orlowski’s full article here.

Uber – Do you want your daughter to use it?

There are so many stories in circulation this week detailing the sins of the presumptive disruptor of the the hired car industry, that I would feel more than redundant summarizing all of it here.  Read this story by founder and Editor-in-Chief of PandoDaily, Sarah Lacy who was singled out as a journalist whom Uber executive Emil Michael stated publicly he would smear for her criticisms of the company. You can also read about the company’s chauvinistic ad campaign, its tactics to undermine competitors, CEO Travis Kalanick’s boasting about how the company gets him laid, or you can read anecdotes involving some very acute dangers passengers have experienced like a near abduction, or just the data collection being done with all riders.  Or, for a laugh, you can read about Uber investor and movie star Ashton Kutcher wondering on Twitter “What is so wrong about digging up dirt on shady journalists?”  Oh, Ashton, just sit there and look pretty and try not to say things.

The overarching theme from many journalists commenting about the too-aptly named Uber — even Sarah Lacy despite her feeling threatened — is not that the company needs to go away but that its executives need to grow up.  “…the very values at the core of start-up culture — the move fast, break things, us-against-the-world spirit of experimentation — are inconsistent with the kinds of responsibilities that come with being an economically important company that touches millions of customers,” writes Neil Irwin for The New York Times.  He’s right, of course, but I am skeptical that growing up is in the cards for these executivettes.  As the father of sons and a former boy myself, I often generalize that males are pretty immature by nature until they’re at least in their mid twenties, and one way to really stifle potential growth in nearly any male is to value his start-up company at eighteen billion dollars and tell him he’s a genius.

The problem with incubating the kind of permissionless culture that fuels Silicon Valley is that a “boy genius” with too much money in his pockets really cannot distinguish between breaking one set of rules, like a business paradigm in need of change, and breaking all other rules like social responsibility, liability, and personal behaviors that denigrate others. To show how far the dementia goes, read about Standford Law Graduate and co-founder of RapGenius, Mahobod Moghadam, smugly defending his proposal to steal from Whole Foods.  Why?  Because he wants to.  This is what passes for “thought” when the thought leaders all drink the Silicon Valley Kool-Aid.

While we could enumerate sundry flaws with traditional taxi and limousine regulations in particular cities, it should be noted that these problems associated with Uber have manifest in a very short time since the company’s launch, and that these ills are the reason state-imposed regulations exist in the first place — because human nature simply isn’t good enough in a permission-free society.  Boys simply do not grow up unless adults force them to do so against their will.

Create an unregulated taxi service, and of course, women are going to be less safe than if they’re being driven by a cabbie who had to pay a fortune for a medallion.  No that system isn’t perfect either, but it’s fundamentally safer, includes oversight and a liability chain backed by insurance; and it never involves a private company collecting data on your comings and goings.  Moreover, I don’t think consumers who see Uber as a real game changer right now have considered the potential for unprecedented price-gouging if traditional T&L services are “disrupted” out of competitive existence.  And drivers are beginning to realize that being an Uber “partner” means having a job without any of the benefits or security of actually being employed.  No rules means no rules. No rules means the owner of the ball always wins.  So, we’ll see where this goes, but for now, if you had to put your teenage daughter in a hired car tonight, would Uber be your first choice?

Copyright Critics Don’t Quite Get Artists

Copyright critics, particularly those voices murmuring in the halls of academia and legal scholarship, seem to question the purpose of copyright as though the law itself has generative properties. While it is true that copyright imposes one kind of constraint, and that constraints in general tend to be generative in the creative process, copyright’s critics focus a great deal of attention on the productive implication in the language of the IP clause itself, meaning its purpose “to promote the progress of science and the useful arts.” A popular viewpoint asks a reasonable-sounding question:  Does copyright produce the public benefits conditionally implicit in the clause; and if not, has copyright worn out its usefulness? This boils down to skepticism about copyright’s presumed role as an incentive for the creation of works but fails to account for a lack of understanding about creators and their many motives.

We can no more ask copyright to produce creative works than we can ask civil rights laws to eradicate prejudice from the hearts of all mankind. And even if copyright’s critics do not mean literally to suggest that the law itself is generative, the language often used does covey this connotation. For instance, one common argument made begins with the irrefutable statement that people created works before copyright, followed by the reasonable prediction that they will still create without copyright; and these premises then lead to skeptical conclusions about copyright as an incentive for the creator. But this view of the creative worker choosing to engage in his or her process is both naive and cynical, in part because it begs that mercurial question about the role of money.

Artists create work because they are driven to do so, and the extent to which profit is on the mind of any particular artist during the production of a work is first, nobody’s business; and second, too complexly varied among creators to use as a basis for examining incentive. A traditional rap artist, for example, produces his brand of poetry out of real experiences from the streets and simultaneously hopes that his works are a path out of those streets. There is no point in trying to parse these overlapping motives in a futile attempt to properly understand one artist’s incentive, let alone to then apply half-baked conclusions to describe the motives of all creators.

Copyright critics may hear artists say things like they’re “not in it for the money” or that even thinking about what might be done with a work after its completion can be detrimental to the creative process itself. But these utterances are not so black-and-white as they might seem, and their themes are too often taken out of context in order to further support a thesis that a disconnect exists between copyright and the incentive to produce.

For instance, when the creative worker says he or she is not expecting to make money, this is usually a half truth reflecting an understanding that any attempt to predict the alignment of stars that must happen to make a work financially successful is an exercise in madness. This does not mean that most creators are not hopeful, sometimes rather desperately, that a work-in-progress will be at least modestly remunerative; it is merely a recognition that this outcome is nearly impossible to foresee in most cases. A songwriter may write fifty songs in a year but cannot say for certain why seven of these might be recorded by various artists or why one song in particular makes the charts. Invariably, some of the rejected songs were the ones she thought were the best. So, the venture is always risky, and no creator possessing any common sense expects a promise that his or her work will be desired by the market. Nevertheless, out of the millions of creators who choose to engage in these ventures, often against the advice of friends and family, comes the diversity of works that collectively make life richer for all of us.

Where the common critical view is faulty, I think, is its too-literal interpretation of the incentive/creation paradigm, a mistake easily made by salaried academics, but not one made by artists, who are pleasantly satisfied when any one work can generate enough compensation to more comfortably produce future works.

Using a simple hypothetical, an author may produce volumes of un-marketable works, then perhaps a profitable but pedestrian work, and then one masterwork that will become timeless. But without his secured financial interest in that middle, profitable work, the probability that society will be the beneficiary of the masterwork is lowered. Of course, few stories follow this linear progression, but the point of this over-simple example is that when copyright provides at least a basis for economic stability for the artist, we enjoy a system in which the vast diversity of artists continue to take all of the risks, while society is solely the beneficiary of the most favored works produced without taking any risk.

By inviting a model without copyright, we could well trade the diversity we now enjoy for a more limited number of works produced solely by creators who already have economic stability. It is perhaps not surprising that such an elitist outcome would be overlooked from the vantage point of relative security within academia, where pressure to produce certain original works may exist, but without the kind of risks borne by the artist, who lives by the fruit of her labor alone.

This question of copyright’s relevance is, of course, one predicated on technology changing the marketplace. It is assumed (though not on the basis of any evidence) that digital tools for creation, and especially distribution, of works somehow obviates the need for authors to retain ownership of their copyrights in order to sell to the market through various licensing regimes. Here, the critic’s assumptions already contradict the original claimed examination of copyright as an incentive to create works because the only relevant change that has occurred is with regard to the distribution of works after they have been created.

Yes, artists have many new digital tools for production, but nothing about the motives to create or the labor that represents human transference of idea to rendering upon some medium has changed in any way that is relevant to examining copyright. Only the distribution of finished works has been changed by the internet, and so this examination by critics should not pursue the incentive to create question in the manner that appears to be the trend in academia.

Having said that, it is worth noting that copyright does provide incentives other than financial that are indeed relevant to authors, even if their intent might be to make work available for free without expectation of any revenue. And this is one way in which the highbrow copyright skeptic seems particularly cynical in failing to recognize that an anything-goes market most certainly can de-incentivize creators to produce or distribute works, if they must relinquish their power to control the manner in which their works are used.

Further, if it is true that a copyright-free future could shrink the pool of producers to those already financially secure (as predicted above), this suggests that all the non-remunerative benefits of copyright might be of even greater value to those authors still willing and able to produce. And in the absence of those rights, we could easily see a reduction not only in the number of producers, but also in the number of works produced by that elite few.

In a practical example, imagine the trustafarian artist working in the most altruistic manner, producing wonderful works solely to be experienced; he doesn’t care about money, but he does have to accept that McDonald’s can use his work to sell hamburgers, which betrays everything he is expressing. It is not farfetched to imagine the artist in this example will withhold works from public view, even if he continues to produce for his own pleasure.

In fact, as reported by Gabe Friedman for The Atlantic, graffiti artist David Anasagasti filed a copyright infringement suit against American Eagle Outfitters for featuring his work in their ad campaign. Graffiti is certainly a medium that represents a permission-free spirit and is a public expression offered without expectation of compensation; but Anasagasti’s suit, right or wrong, and regardless of the ruling, makes the point about copyright’s incentive in this context. We could argue ad nauseum about the legal merits of his case, but the fact that the artist cares is what matters. Deprive any kind of artist of control, particularly to fend off commercial interests, and he/she may well decide to deprive us of future works.

Once we shift attention to the matter of distribution in the digital age and the opportunities and threats faced by creators, we tend to hear less theory from academia and more from corporate interests with a financial stake in an internet that rejects most regulations, including copyright. The academics, it seems, tend to focus on legal theory —  the intent of the framers; distinctions between property rights and natural rights; the question of copyright’s function as an incentive, and so on. But the question that should be asked is the role of copyright as incentive for the distribution of works, with an honest look at the very complex manner in which sustainable distribution systems feed the cycle of new production. As I say, this is usually when the conversation tends to transition from legal theory to market practices, and in that regard, we can look at data.

While it’s true that there is no one solution for all creators and all media, the general premise that is skeptical of copyright in the digital age appears to be based on a few assumptions that have almost entirely failed to manifest in the digital age. And despite evidence to the contrary, these assumptions continue to fuel predictions of a brighter future for creators, fiddling as Rome burns. The foundational assumption is that the author of a work can sell directly to enough real fans through the nearly free distribution platform of the internet (with free tools graciously offered by various tech companies) that she can bypass licensing regimes with traditional distributor entities. Without the need for this kind of licensing, the author no longer “needs” copyright in order to engage in newly-available, one-to-one transactions with customers. Moreover, the author keeps nearly 100% of all proceeds rather than a percentage of the distributing entity’s revenue, and this hypothetical revenue is expected to offset any losses resulting from unauthorized acquisition of the works.

In essence, the argument boils down to this:  That while the Internet fosters threats (e.g. piracy & lower prices), it also creates opportunities (e.g. self distribution & greater percentage back to authors) that are predicted to be more potent than both the threats and the pre-digital models.  The problem is that none of these hypothetical benefits for creators are becoming manifest at any scale that we can take seriously as a basis for questioning the catalytic role of copyright in supposedly “outdated” models.

While we do hear occasional examples of digital-age opportunities proving to be successful for specific creators, the reason we continue to encounter the same handful of anecdotes repeated in editorials, blogs, and even testimony before Congress, is that these stories are dramatically outnumbered by the millions of examples in which both artists and consumers are facing a loss of works to due to threats posed by the digital age. This may seem counter-intuitive because to look at the market right now, there are more works available than ever, but this expansion may be temporary because we are still in a transitional period, enjoying the bounty of the moment, while not seriously considering the other side of the threshold if certain threats are not properly addressed.

Medium by medium, one has to look at threats and opportunities differently, and this conversation unavoidably includes the subjective assessment of “public benefit,” leading to the interesting but futile debate over what constitutes works of value (i.e. what we hope survives or fails).  Nevertheless, it seems reasonable to predict that if the vast majority of creative producers, including those whose work supports authors, are overwhelmed by threats, then the net result over time will be a reduction in the volume of works of value by the broadest, sensible definition of the term. Copyright alone is not the answer to the many forces at play affecting all workers throughout the middle class; but weakening copyright for the creative sector has at least an aggravating — if not outright destructive — effect when combined with those other economic pressures in the same way that, say, stripping collective bargaining rights exacerbates the woes of another kind of labor force. So, intellectual discourse within the comforts of academia are all well and good, but pollyanna assessments of almost any industry sector right now do reek of elitism, blind to the realities of those who depend on the rights in question.