Category: Culture

LA Times editorial addresses outdated DMCA

The 1998 Digital Millennium Copyright Act is obsolete, and everybody knows it.  The DMCA was the topic in the House Judiciary Committee hearings on copyright review about two weeks ago, and much has been written about its flaws both from pro and anti-copyright perspectives.  A recent editorial in The Los Angeles Times leads with a headline “Congress should bring copyright law into the 21st century.”  Unfortunately, for far too long, this particular theme has been distorted by technology interests to convey the message that copyright law as a principle is obsolete in a market that has been transformed by the capacity of the internet to enable mass, cheap distribution of media.  In reality, though, the story that is finally being told is that certain aspects of copyright law, like the DMCA, are inadequate protections for rights holders in the digital age.  Quite simply, the technologies of 2014 enable and reward piracy on a scale that no entity of any size can combat with a 1998 mechanism.

The Times article does a good job of summarizing the flaws with the DMCA, both for rights holders and legitimate internet companies; and it makes the radical suggestion that companies like Google might want to collaborate with media interests to simultaneously strengthen protections for creators and craft a legal framework that would be more efficient for entities like YouTube, which receives a tremendous volume of takedown requests under the DMCA.  It was just a couple months ago that YouTube passed the milestone of receiving its 100 millionth takedown request from the recording industry alone.

See the full LA Times editorial here.

For some perspective on just how useless DMCA is for an independent content owner, watch this video from Fast Girl Films and VoxIndie:

 

Coup du Jour – Eric Schmidt as CEO of America?

Image by RienkPost

In case you missed it, OWS co-founder, now Google software engineer, Justine Tunney is responsible for a petition calling for a coup d’etat that would hand over administrative authority of the United States to the tech industry and appoint Google executive chairman Eric Schmidt as CEO of America.  Whether Tunney is trying to be amusing, or she’s deranged, or she’s just another Twitter attention junkie, nobody is taking her too seriously if the comment section below the article in The Guardian is any indication.  In fact, this is one of those side-show moments that I questioned commenting on at all except for the unfortunate fact that so much of what now passes for discourse in the world  comprises so many side shows that mutate into headlines and round-table discussions on once-respectable news programs.  Even more relevant, though, is that even if Tunney herself is dismissible, her appeal might actually touch a few very real nerves running though the body of the American electorate.

For starters, the suggestion that any business leader ought to be president, that the presidency itself is like being a CEO, is a well-entrenched conservative idea also popular with many right-leaning libertarians.  Given that one of the universal complaints about government is that the elected are terrible stewards of “our money,” it’s a natural, albeit narrow-minded, instinct to want to elevate a successful business operator to the presidency so that he or she can “get our house in order.” On purely theoretical grounds, I have always quarreled with this premise because a corporation is not a democracy — I don’t care how flat you say your org chart is — so much as it is a benign dictatorship, usually designed to excel in a limited number of core competencies in the service of profitability.  Democracy isn’t efficient, giving everyone a voice isn’t efficient, balancing competing interests within a nation isn’t efficient; but inefficiency is one of the prices we pay for free speech, the right to redress the government, the right to assemble and organize, and so on.

Conversely, CEOs are conditioned toward efficiency and toward meeting quarterly goals for their shareholders.  As such, CEOs are not necessarily the best collaborators; they’re often not multi-dimensional thinkers; they frequently have egos way too big for Washington (which is saying something); and they’re not particularly oriented toward balancing the needs of the diverse and quarrelsome many. There are and have been CEOs who meet these criteria, but my point is that a strong P&L statement alone does not make a good resume for Leader of the Free World.  Interestingly though, while Tunney is standing on this weatherbeaten plank of the GOP, I think she’s simultaneously echoing sentiments among the left and libertarian left, who have come to think of technologies like social media as the antidote to corporate/government corruption and incompetence.  And this is where the bizarre confluence of Occupy zeal and the idea of appointing a less-than-one-percenter like Eric Schmidt as national leader might actually make some twisted sense in certain minds.

Occupy, after all, was a YouTube protest that was unfortunately almost as fleeting as that damn “What Does the Fox Say” video, and just about as likely to effect any tangible change in the world. At its core, I thought OWS began as a legitimate response to a genuine problem — wealth consolidation and the many systemic ways in which this economic cancer, eating away the middle class, is protected and perpetuated in the U.S.   But Occupy rather quickly manifest as the proverbial rebel without a clue — yet another social media side show in which the lead stories became a handful of viral videos depicting excessive force by certain police officers instead of a narrative relating any kind of clear, advancing agenda.  Thanks in part to the ephemeral nature of social media and its tendency to provoke an increase in conspiracy theory, the story of Occupy became the story of who was trying to shut it down rather than what it was meant to accomplish. Think OWS today, let alone years from now, and what probably remains are a few images of cops misusing pepper spray.  Imagine if all you could say about the civil rights movement is that some cops sprayed people with fire hoses.

Like it or not — and I certainly don’t — the Tea Party made Occupiers look like a bunch of fair-weather activists who seemed to think it was enough to conjure the illusion of a movement with all the trappings and also seemed to confuse mouse clicks with votes.  OWS generated images and buzz and “Likes” and a moment of fleeting outrage while the Tea Party got seats in the House of Representatives.  So, while Justine Tunney may be mockable for her hypocrisy, trying to trade on OWS bona fides from the rarefied heights of Googletopia and anointing the most corporate of corporate guys, the irony is that an event like OWS unwittingly does feed the pseudo-progressive trend toward a technocracy.  OWS was a functionally impotent movement with regard to addressing any serious issues, but one that simultaneously elevated the apparent relevance of citizens using smartphones and social media. By extension, this elevates the importance of the individuals who build those technologies.

In this sense occupy takes on an unintended second meaning.  While it was meant to express a contemporary sit-in whereby people occupy physical space as a form of protest, the millions of people passively engaged online were occupied in the sense that their attention was drawn particularly toward the aforementioned images of police misconduct.  While this is happening, the unseen irony is that the one percent of the one percent who own social media sites are saying “Ka-ching!” while many users are thinking, “Thank goodness for YouTube and Facebook and Twitter, or we would never know about these extraordinary (soon to be forgotten) events.”  Thus, I would argue that on at least a subconscious level, people come to think of a guy like Schmidt as a national leader of sorts.  It reminds me of Mark Twain’s A Connecticut Yankee in King Arthur’s Court in which the 19th Century man with his technological prowess is to be given a title that doesn’t quite acknowledge that he’s the most powerful person in the realm.  Arthur remains The King, Merlin remains The Wizard, and the technologically skilled Yankee is given the title The Boss.

Red Flag or Bloody Shirt – The MP3Tunes Case

So, what happened this past week is that a jury found that the former owner of a now-defunct music site called MP3Tunes was liable for copyright infringement because he ignored the fact that users were uploading illegal copies to his cyber-locker based site.  Safe harbors contained within existing copyright law are designed to protect website owners from this kind of liability on the grounds that it is, of course, possible for users to upload infringing content without the site owner’s knowledge or permission.  If, however, the site owner(s) can be found to have knowledge, particularly of frequent or high-volume infringement, then they effectively forfeit safe harbor protection and are subject to a liability claim.  That makes sense, and nobody really disputes this premise.  When these cases go to court, what is usually disputed is the idea that a site owner’s knowledge can be proven, and some of the more preposterous clowns in this circus like Kim Dotcom and the owners of The Pirate Bay have been known to say things like, “I don’t know what people do on my site, I’m not responsible for what they do, and anyway file sharing is good.”

According to Jeff John Roberts, writing for GIGAOM.com, the MP3Tunes case signals an important shift in legal precedent that ought to be concerning for internet and technology advocates.    Roberts writes:

“The significance of the case has little to do with MP3Tunes, which has long been closed, but instead stands as a strategic victory for copyright owners. That’s because the jury found Robertson liable on the basis of so-called “red flag” knowledge rather than “actual” knowledge. The distinction may sound arcane, but it’s one the studios have fought hard to establish as part of their strategy to change the level of proof needed to prove piracy.”

The distinction between “actual” knowledge and “red flag” knowledge may have a legal definition, but in this kind of case, it doesn’t sound arcane so much as it sounds childish.  If an owner of an actual website can measure actual traffic and assess quite accurately where that traffic actually goes; and then that actual traffic results in actual dollars in the owner’s actual pocket, I have to assume, as a prospective member of the jury, that the owner in question had what I call knowledge of the kind of files that were making him money.  So, while Roberts seems to suggest this case sets a bad precedent for the rights of site owners who ought to be protected by safe harbors, it looks to me a lot more like common sense is being applied to those site owners who clearly should not be protected.  Nevertheless, Roberts projects some very dire implications of this kind of ruling thus:

“The upshot of all this is that studios, sensing that safe harbors are weaker than they used be, may feel emboldened to go after more sites for alleged infringement. Conversely, weaker safe harbors could make entrepreneurs less willing to experiment with new platforms and technologies.”

There’s that narrative again.  The “studios” are chomping at the bit to go after every little site owner that might be infringing, and this is going to stop “innovation.”  Seriously, with all the money the internet industry has, they might be want to buy a new mantra because this one is getting really boring.  For one thing the “studios” have neither the interest nor the resources to go after the small-scale infringements out there.  Given the scope of piracy worldwide, I think the “studios” would be thrilled to mitigate the problem by some percentage and move on.  Second, after about three years of listening to internet activists tell us people are going to be afraid to innovate, I haven’t heard one legitimate example of a prospective innovation doomed to the dustbin because copyrights are protected and enterprise-scale pirates are prosecuted. Not in editorials, not on blogs, not in testimony before the House Judiciary Committee.  It’s always just some vague reference to innovation in general.  This narrative the industry and its activists keep selling, waving the bloody shirt of the early post-Napster days, has little relevance to the contemporary market, the state of piracy, or current strategies to protect IP rights.

Finally, is it necessarily the case that applying a rationale which logically incriminates someone who is actually guilty of a crime automatically weakens rights for the rest of us? Were safe harbors really weakened here?  I haven’t been to law school, but it sounds like a stretch to me in this case.  Or is this really all about Google?  Roberts rightly points out that Google is a “powerful advocate for safe harbors,” and you bet they are.  With a site the size of YouTube and users uploading videos at a rate of 100 hours every minute, I think it’s a given that company’s executives are going to be firm supporters of the “we didn’t know” defense.  There’s just a little problem in that Google’s mission is to “organize the world’s information,” and the company seems to be pretty damn good at knowing quite a lot about a great many things, including you and me and what we do, say, and see online.  So, if the “we didn’t know” defense is lately springing a few leaks, it’s possible the only “innovators” actually worried about it are a handful of billionaires who run an American company that just might have to clean up its act.