Category: Copyright

YouTube’s Tactics Re. Article 13 Are the Real Concern

When a media conglomerate is the subject of a news story, we expect the news organization owned by the parent company to acknowledge that relationship in its reporting.  So, when ABC News reports a story, positive or negative, about the Disney Corporation, it is standard practice that the reporter remind viewers that she is talking about her ultimate employer.  Unfortunately, the paradigm is very different when it comes to new media companies like YouTube, which can leverage the global reach of its platform (fueled by the capabilities of Google) to evangelize any message that serves its policy interests. 

In a new guest post on The Trichordist, Volker Rieck lays out the manner in which YouTube uses the power the platform to influence public debate (i.e. scare the bejesus out of people) when seeking a policy outcome favorable to the company.  After CEO Susan Wojcicki addressed the community of YouTube creators in a blog post and video warning them that Article 13 of the EU Digital Single Market Directive threatens their livelihoods, she got the response she was looking for.  As Rieck describes…

“Wild claims circulated that YouTube channel operators would already see their livelihoods threatened in 2019, that Article 13 was a censorship law, and so on. The platform helped the videos made in response to its own appeal to become highly visible and to reach wide audiences by displaying them on user home pages and by categorizing them as “trending.” Three of the top 5 videos in the YouTube trending charts at the beginning of November transported these dystopian visions.”

So, apropos my intro, even if the claims and assumptions made about Article 13 were accurate—and they are not—it should be more than a little frightening that a corporation with the scope of influence of YouTube can so effectively shape reality in regard to any matter of public policy.  To quote a recent post by Neil Turkewitz, responding to the EFF’s lopsided approach to Article 13, he summarizes the current draft of the directive in the following sober terms:

“… it requires large commercial platforms who are in the business of content distribution (defined in the legislation) to license the works that they are distributing, and to take steps to guard against the distribution of works for which it is not licensed. While the use of filters is not explicitly mentioned (unlike an earlier version of the Article), it is anticipated by most parties that most covered platforms would discharge their obligations to prevent distribution of infringing materials through the use of available technologies — either bespoke like ContentID, or off the shelf from a supplier like AudibleMagic. 

It is also important to keep in mind that, while it is timely for all creators (including YouTubers) to become better informed about Article 13 and to weigh in on the merits of the proposals, it will take at least a couple of years for all of the member states to implement the directive.  Thus, YouTube’s efforts to panic its entrepreneurial creators this month should be reason enough to question both its methods and its motives.  Is it really about those creators, or is it about a $160-billion company not wanting to pay license fees to other creators?

On the one hand, this type of scare-mongering is business as usual.  A corporation or industry doesn’t want the responsibility or cost of complying with a proposed law, and so tells consumers or employees (or both) that they will suffer if the policy in question were to be implemented.  But on the other hand, when a media platform like YouTube claims that a new policy will have “unintended consequences” like shutting down various channels, the company is uniquely empowered to spread its self-serving message and to manipulate user experiences in order to prioritize that message over other narratives.  As Rieck puts it …

“Ultimately, the way YouTube channels have been pressed into the service of the platform demonstrates just how urgent the need for measured political regulation of the platform has now become and how easy it is for the platform to exploit the ecosystem of private and semi-professional pseudo-journalism it hosts for its own ends.”

I would go so far as to at least entertain the possibility that YouTube could shut down or severely limit various channels as a false-flag tactic aimed at sowing further resentment against proposals like Article 13.  Perhaps the company would never engage in such an underhanded scheme, but really, what’s to stop them?  After all, they are already willing to engage in bad-faith PR designed to mislead YouTubers about the true nature of the EU directive.  In her open letter to YouTubers, CEO Susan Wojcicki, states:

“Article 13 as written threatens to shut down the ability of millions of people — from creators like you to everyday users — to upload content to platforms like YouTube. And it threatens to block users in the EU from viewing content that is already live on the channels of creators everywhere. This includes YouTube’s incredible video library of educational content, such as language classes, physics tutorials and other how-to’s.”

Really?  Even if we set aside the fact that Article 13 is a proposal to develop protocols that will take time and further negotiations to implement (if they happen at all), this statement implies that a very high percentage of YouTube channels rely substantially on unlicensed copyrighted material.  If that’s the case, why the should that status quo be preserved?  I’ve seen a lot of funny, informative, creative videos produced for YouTube that do not make any use of other creators’ protected works. 

For the YouTube creators who do use some portion of protected works, Wojcicki raises a subtle but important dichotomy when she addresses them as “a diverse community of creators who are building the next generation of media companies.”  Because that sounds to any reasonable person like a business enterprise.  And if these YouTubers are indeed engaged in business, then why shouldn’t they have the same responsibilities as every other type of professional creator to work within boundaries that respect copyrights?

It seems that when it suits the platform’s interests, we are meant to think of YouTubers as either hapless children (remember Lawrence Lessig?), who cannot be expected to know about copyright; or we are meant to think of them as the vanguard generation of new creative professionals, who should not be burdened by copyright.  Notice how, in either case, YouTube seeks to avoid its responsibility—as the only multi-billion-dollar media company in this narrative—by aligning its interests with the interchangeable interests of its users.

I recognize that underlying YouTube’s ability to frighten this class of creators about Article 13 is a litany of mistakes and abuses of existing models like Content ID or the DMCA notice and takedown process.  YouTube creators have had their own works targeted, either through error or willful misuse of these systems; and bad actors have targeted works they do not legally represent. 

While the anecdotes of bad-faith use of these systems are true, they feed a broader narrative which is not true:  that abuse of content-filtering systems is so rampant that the status quo is preferable to any attempt to make these systems work better for all stakeholders.  The status quo may be working for YouTube’s bottom line, but it certainly is not working for rights holders whose works are infringed at uncontrollable volume on the platform.   In fact, I have yet to see any data that even indicates that filtering or DMCA abuse is anywhere near the scope of infringement.  

Meanwhile, assuming Article 13 becomes law in the EU, YouTube creators have at least a couple of years to assess the extent to which their channels truly rely on the protected works of other authors.  Those who do not use other people’s works should be entirely unaffected; and if they are, their complaint may be properly directed at YouTube rather than Article 13.  Creators who use protected works legally—either by license or fair use—should play a particularly active (but informed) role in these developments.  

As professional creators, I suspect YouTube creator interests will increasingly share common cause with other types of creators.  In fact,  YouTube’s July launch of its Copyright Match system to address creator-to-creator disputes certainly suggests that YouTubers care about their own copyrights and should, therefore, take a proactive rather than a reactive look at the goals of Article 13.  After all, with regard to the way Wojcicki’s letter spawned a lot of misinformed outrage, it’s worth noting that just because this class of creators uses YouTube is no reason to let YouTube use them.

Source illustration by studiostoks

Counterfeits, Copyrights, and Digital Dysfunction

Now that the holiday shopping season is officially underway, it seems like a good time to talk about counterfeit products; and it may surprise some readers to know that consumers have almost no meaningful protection against the tens of thousands of counterfeiters operating online.  At best, a counterfeit product will merely be disappointing; at worst, it will set the house on fire or maim someone; but a recent copyright lawsuit filed against the service provider CloudFlare demonstrates just how insufficient the mechanisms for addressing this problem really are.  

Though the subject of this litigation is wedding dresses and other formalwear, keep in mind that it can just as easily be a product that plugs in, a medical device, or a child’s toy with toxic properties. 

Mon Cheri Bridals and Maggie Sottero Designs are suing CloudFlare for contributory copyright infringement pursuant to the platform’s failure to comply with the terms of the DMCA.  As designer/manufacturers of bridal and formalwear, the plaintiffs see their works copied all the time by China-based counterfeiters, who then sell the knockoffs via websites featuring the plaintiffs’ own marketing photographs.  

The photographs are copyrighted works, and so the plaintiffs have filed hundreds of DMCA takedown notices requesting removal of their images from the various sites engaged in marketing counterfeits of their products.  Then, because the target sites have–not surprisingly–refused to remove the photographs, plaintiffs allege that this makes them “repeat infringers,” which then implicates CloudFlare’s obligation under DMCA to terminate their accounts.  Because CloudFlare has not taken action to terminate these accounts, plaintiffs allege the platform is liable for contributory infringement.

CloudFlare is already a deeply problematic service provider—a prime example of everything wrong with the kind of internet idealism that has for too long tolerated (and even celebrated) companies that hold themselves above the law while protecting the identities and maintaining the operations of criminal enterprises.  As a favorite provider of anonymous hosting for major pirate sites like ThePirateBay, CloudFlare is probably only still in business because, as Devlin Hartline notes in this 2016 post, “the DMCA is such a mess.”  “Courts have set the bar so high that CloudFlare wouldn’t likely be found to have red flag knowledge of the massive amounts of infringement it certainly knows its service enables for globally-infamous criminal infringers…,” Hartline writes.

It’s bad enough for creators that the DMCA is woefully inadequate for mitigating online infringement where copyrighted works are the central subject of a complaint.  But in this case for Mon Cheri and Sottereo, the copyright infringement is, of course, ancillary to the larger crime of counterfeiting; and it is truly unfortunate that the DMCA is the plaintiffs’ best—let alone only—means of targeting these foreign-based websites used to hijack their enterprises and defraud consumers.

While the plaintiffs are certainly correct that their marketing photographs are protected by copyright and the counterfeiters’ infringing uses are properly the subject of DMCA, both legitimate product-makers and consumers deserve a more robust mechanism for protection from this kind of online predation.  

If your kid wound up playing with a toy that scalded her (or worse), you’d want the counterfeit website selling that product to be shut down.  End of discussion.  And the American-based hosting provider shrugging at you while taking the counterfeiters’ money would provoke a justifiable pitchfork-and-torch moment for parents everywhere.  The fact that the counterfeiters also happened to be infringing the photographic marketing materials of the real manufacturers would reasonably be viewed as secondary to the fact that consumers ended up with dangerous products in their homes.  And DMCA is no way to address that problem.

The DMCA is in serious need of overhaul, if it is ever going to meaningfully address online copyright infringement.  But a matter of even greater urgency is perhaps new legislation that can provide legitimate businesses with a reliable and expeditious means of shutting down websites that intentionally traffic in counterfeit goods.

On this topic, readers may not remember that the SOPA/PIPA bills included provisions designed to keep counterfeit products out of the military supply chain (so soldiers wouldn’t end up wearing fake kevlar or something);  and that proposed legislation still remains every fool’s battle cry for defending the alleged sovereignty of “the internet.”  Of course, “the internet” is not even a weak sovereign.  If you end up with a foreign-made, counterfeit product that rips you off or kills someone, the service provider that helped you buy that product is free to KNOWINGLY continue hosting the fraudulent website and respond with a smug grin while he cashes the counterfeiter’s check.   

As any regular reader knows, I have never understood believing the premise that the major internet companies are squarely on the side of the angels—that Facebook is an unqualified good for democracy, that YouTube is an unqualified good for artists, or that Amazon is an unqualified good for all commerce, etc.  Yet, despite mounting evidence that such generalizations are far from accurate, we are presently watching yet another variation of the anti-SOPA campaign play out in Europe over the proposed Article 13 legislation to mitigate copyright infringement on major platforms like YouTube.  As Neil Turkewitz writes in a recent post on the topic …

“They have enjoyed the freedom of wolves without regard to the safety of sheep, and are naturally opposed to the restraints imposed by fences. But our interdependence makes fences essential for the functioning of democratic societies. By eliminating fear, we create freedom and enable the pursuit of happiness.”

The time to correct this level of dysfunction is long past due.  Both of the current liability shields protecting online service providers—as established in Section 230 of the CDA and in Section 512 of the DMCA—were based on an assumption of good faith and good-samaritan behavior.  But CloudFlare is just one extreme example that demonstrates why this expectation of good faith is, and always was, utter folly.  Limiting the liability of these companies has made them arrogant, predatory, and ominously powerful with the amount of wealth and information they wield.  If there is profit to be found within legal loopholes, it is the rare exceptions whose personal ethics will forego such an opportunity.  It is time to start writing internet policy based on the rule rather than the exception.

See also Consumer Guide to Counterfeit and Copyright-Infrigement Free Holiday Shopping from Copyright Alliance.

Walt Whitman Championed Democracy and Fought for Copyright – Part II

(This post was first published as part of Copyright Alliance’s Secret History of Copyright Series)

“This copyright bill is the doing as we would be done by.” — Walt Whitman, 1891—

Upon passage of the international copyright law just about a year before his death, Walt Whitman’s comment (quoted in Part I) included this refrain of the Golden Rule, about which scholar Martin Buinicki, in his 2003 paper writes the following: “The somewhat grumpy pragmatism evident in Whitman’s ‘do unto others’ defense of his views is offset by the revelation that the international copyright law was more than a business matter for Whitman; it was ‘a question of honesty—of morals—of a literature, in fact.’” 

Despite America’s eventual leadership as a mass producer and exporter of creative works by the mid-20th century, the U.S. was remarkably slow to adopt international copyright agreements in contrast to European and other major trading partners.  Walt Whitman’s career coincided almost exactly with the roughly fifty-year interval between early debate on international copyright and ultimate ratification of the law; and in the same spirit in which Whitman answered Emerson’s call for a new—and intrinsically American—voice, he devoted that voice to the cause of copyright as in one editorial, written in 1846 for the Brooklyn Evening Star, which states…

“The writers of America are more miserably paid than their class are in any other part of the world.  And this will continue to be the case so long as we have no international copyright.  At this time there is hardly any encouragement at all for the literary profession in the way of book-writing.  Most of our authors are frittering away their brains for an occasional five dollar bill from the magazine publishers.”

For roughly a half century, while America’s trading partners adopted various international copyright agreements, the U.S. Congress remained persuaded by the independent publishers—this included printers, typefounders, bookbinders, et al—who argued that adoption of international copyright would result in large, eastern firms gaining monopoly control by virtue of their being the only entities with the resources and relationships necessary to obtain licenses for foreign manuscripts.

Thus, Buinicki sees as relevant Whitman’s dual role as both author and “defender of the artisan class.”  “Just as [Whitman] felt that American democracy could foster native authors even as it provided fair treatment for foreign authors, his publishing practices collapsed the kind of printer-author-publisher oppositions that remained at the center of the monopoly dispute,” writes Buinicki.  This refers to the fact that, as a staunch advocate of international copyright, Whitman also remained close to the independent printing industry, in which he had apprenticed years before becoming the author and poet we know today.

When he self-published Leaves of Grass in 1855, Whitman employed a small, independent firm and even helped set type for the first edition.  DIY in both spirit and practice long before that acronym existed, the views of America’s preeminent, democratic poet would offer little support to today’s digital-age pundits, who like to contrast—rather than correlate—the interests of independent artists with the purpose of copyright.

As Buinicki observes in his paper, Whitman’s advocacy of copyright was much broader than his own—or any other author’s—proximate financial needs; it envisioned a mature and holistic culture in which America should not merely strive for a place among the global anthology of creative works, but would be uniquely poised to lead in the production of culture.  He was one of many authors and artists (and not all of these were American), who believed instinctively that the brash, American experiment in republicanism—codifying the freedoms of speech, religion, and the press—implied an unprecedented opportunity for creative expression in Western culture.

It cannot be overstated that when Whitman began his career, the United States was still a stumbling, backwater nation in more ways than one.  The Revolution generation was just dying off, and the next wave, with a median age under 18, were just beginning to imagine how the principles enshrined in the Constitution might actually apply to people other than privileged, white men.  Against this backdrop, Buinicki places Whitman as a critic of America’s timidity in plodding toward adoption of international copyright, suggesting an unwillingness to compete with the more developed nations of the world.  Picking up on Whitman’s sentiments, Buinicki writes …

“The American bard does not thrive by squelching competition but by meeting it openly and generously. Monopoly, on the other hand, suggests selfishness, and its true evil is that, since it is paired with secrecy, it precludes fair and open participation, even if that participation comes in the form of market competition.”

Citing clear examples in both Whitman’s poetry and his correspondences with various publishers, Buinicki demonstrates how the author recognized that the true threat of monopoly lay in the capacity of the predatory entity to act in secret—to exploit without permission.  What mattered to Whitman—as it matters to nearly all creators today—was to be asked, and not exclusively for the purpose of payment.

For Whitman, who articulated, and insisted upon, a metaphysical connection linking himself, his work, and his readers, copyright was an extension of that nexus rather than a barrier to it.  While the modern copyright skeptic seeks to limit originality in the author by over-emphasizing the commons of creative consciousness, Whitman synthesized these forces in his poetry and his copyright advocacy.  “Whitman exploited all means available, including the legal means offered through copyright, to make each copy of the book embody the personal exchange he called for in his poetry,” Buinicki writes.

The passage of the international copyright law did not result in publishing monopolies, a reduction in authorship, or outsized costs to consumers. To the contrary, by ending the piratical American trade in foreign manuscripts, international copyright law had the predicted effect of stimulating investment in American authors, thus opening the door to the US not only out-producing most countries in creative authorship, but also to making creative work one of the nation’s most lucrative and most salutary exports.  Hence, Buinicki’s conclusion says it best …

“Whitman’s support for the passage of an international copyright law in the US … was more than a matter of simply protecting his business interests: it was inextricably linked to his idea of an equal, open, and connected democracy.”