Category: Intellectual Property

Advertisers Announce Effort to Keep Ads Off Illicit Sites

A longstanding challenge with regard to websites that profit from pirated media, counterfeit products, and/or malware is the frequent placement of major brand advertising on the pages of those sites.  Musician David Lowery’s activist website The Trichordist has published lists of major advertisers whose banner ads have appeared on various pirate sites, seeking to hold advertisers accountable for supporting exploitation of musical artists. This kind of activism has drawn both public and industry attention to the problem. In its most basic form, the principle is that Legit Entity A should not benefit from a site that derives its traffic by exploiting Legit Entity B. That probably sounds reasonable to most people, including most advertisers themselves, but what to do about it is another matter — until now.

This morning, the advertising industry announced a new, voluntary initiative that helps advertisers better understand the nature of sites on which their ads may be placed.  The initiative produced by the Trustworthy Accountability Group (TAG)  is called the Brand Integrity Program Against Piracy and it was developed in collaboration with the three major advertising associations — the Association of National Advertisers, the American Association of Advertising Agencies, and the Interactive Advertising Bureau.

For context, it is generally true that advertisers do not want their ads placed on sites dedicated to illegal or harmful trade. Companies spend billions of dollars and thousands of hours developing, cultivating, and managing their brands; and even as brands evolve and experiment to keep up with a changing consumer market, very few brand managers will actively choose to be associated with a site engaged in illegal or exploitative commerce.  Chrysler and Target really don’t want their ads next to an ad for a questionable “dating service” or a link to a media player that will probably load spyware onto your computer.  But unlike other media, ad buying on the Internet is not all directly placed by the advertiser.  When you see an ad on a major site, it was selected and specifically paid for, like when Nissan buys a week of placement all over CNN.com.  But other ads scattered around the Web are what are called “remnants,” and these are placed somewhat blindly through low-cost, generic buys with various ad services.  It’s a bit confusing, but the blind aspect of these media buys has been one reason the advertising community has responded to the content industry that they only unintentionally advertise on sites hosting infringing content. In fact, the aforementioned Target makes a good example.  As Target now offers a movie streaming service, it would stand to reason that the company does not purposely choose to advertise on a site dedicated to movie piracy.

The whole problem won’t be solved with a single program, but thanks to demand by advertisers themselves, TAG today announced a new technology solution that enables advertisers to view site analysis based on assessed risk to their brands.  From the press release issued by TAG:

“Under the program, TAG will work with a small number of independent third-party validators, including Ernst & Young and Stroz Friedberg, to certify advertising technology companies as Digital Advertising Assurance Providers (DAAPs). To be validated as a DAAP, companies must show they can provide other advertising companies with tools to limit their exposure to undesirable websites or other properties by effectively meeting one or more criteria.”

The initiative is designed to identify what TAG calls Ad Risk Entities (AREs), meaning sites that have a high probability of facilitating illegal activity, including dissemination of unauthorized intellectual property.  Through voluntary application of these tools by the advertising industry, the expectation is that online providers who want to maintain relationships with quality advertisers will make the effort to become Digital Advertising Assurance Providers (DAAPs).  A validated DAAP would have to take steps–or show that it already takes steps–to mitigate advertiser exposure to risk according to five criteria designed to provide safeguards and assurances that their brands are not inadvertently supporting illicit activity.  These criteria include identifying properties disseminating infringing material, enabling advertisers to restrict ad placements, preventing fraudulent transactions, providing tools to monitor ad placements, and eliminating payments to undesirable entities.  It is the first initiative of its kind in which the advertisers who support most websites seek to collaborate with providers to keep legitimate trade from supporting black-market trade.

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Not only is this effort a step forward in terms of putting advertisers in control of their placements, providing them better stewardship of their brands; but it also demands greater accountability of advertisers by rights holders and other victims of exploitative sites.  In short, the “I didn’t know” defense weakens considerably with the deployment of these new tools, and since this effort comes from the advertising community, it’s fair to assume they’re generally not looking to hide behind that excuse. Still, the initiative only works if enough parties participate, so we can certainly expect The Trichordist and similar watchdogs to continue to look out for major brand advertising on infringing sites. But on the whole, I expect advertisers do hope to shun these associations because their ad value is being effectively hijacked by these types of sites.  There’s a reason most torrent and cyberlocker sites are so often supported by very sleazy ads:  because it’s a very sleazy business.

More © critics who don’t get the creative process.

It often seems as though each time an artist, let alone a legend, pays homage to the past, some pundit with an axe to grind on copyright seizes the moment to declare the contemporary law restrictive to creative development.  Variations on the theme of “artists could never do that today” have been trotted out in essays, some thoughtful, others not so much.  In this latter category, Ed Krayewski, writing for reason.com, picked up a few themes from Bob Dylan’s 20-minute Grammy Award acceptance speech when he was named Person of the Year by the Recording Academy’s philanthropic program MusicCares.

Dylan pays homage to his well-known roots in folk music and offers tribute to artists who performed his work in the early days. Dylan says, “I also have to mention some of the early artists who recorded my songs very, very early, without having to be asked.”  Krayewski offers this quote referring to Peter, Paul, & Mary as evidence that having other artists play a songwriter’s music has value, as though this some sort of revelation.  Not only does this come under the professional column labeled “No Shit,” but Dylan isn’t even saying what Krayewski seems to think he’s saying.  “Early artists…recorded….without having to be asked” means Dylan didn’t ask them to play his songs, but he was delighted they did.  And nothing in copyright law today prevents this from happening artist-to-artist in the same nascent environment Dylan is describing about his early career and that of Peter, Paul and Mary. In fact, once a song is published, the songwriter cannot prevent a cover from being recorded, even if he wants to, as long as the performing artist pays a fee.  But this licensing process hardly “locks up cultural heritage,” as IT policy consultant Steve Worona tweeted and was quoted in the article by Krayewski.

Dylan has spoken and written so much about his process, his inspirations and derivations, that his words have frequently been served up as proof that copyright kills creativity.  The problem is the argument is so often based on an assumption that the exception proves the rule.  For instance, there is this quote pulled by Krayewski from Dylan’s speech:

I learned lyrics and how to write them from listening to folk songs. And I played them, and I met other people that played them back when nobody was doing it. Sang nothing but these folk songs, and they gave me the code for everything that’s fair game, that everything belongs to everyone.

Ah, ha!  There we have it!  Proof from the master’s mouth himself that work is derivative and, therefore, we can conclude that copyright stands in the way of the creative process!  Except, no.  Again, for an author of, well,…anything this quote also kinda sits in the “No shit” column.  Woody Guthrie or Pete Seeger might say essentially the same thing; certainly they’ve said similar things, but can you tell these artists apart?  Can you tell the differences among Dylan and Guthrie and Seeger and Guthrie the Younger?  In those differences is the work that becomes copyrightable, yet none stifles one another or anyone who has come since to break out of those famous shadows.  Krayewski suggests Dylan’s generation is more litigious than its predecessors, which implies that the present generation of musicians has been left gnawing on musical table scraps because all the damn boomers locked away the prime cuts under copyright.  How then, did that generation produce so much music without spending their lives in court? And where the hell did some wonderfully innovative works I just heard by The Punch Brothers come from?  For that matter, where did all of Dylan’s post 1976 works come from (except the Christmas album), if the “copyright environment” is so toxic? Because there are infinite variations, and artists know this.

The only thing that’s really changed about the copyright environment is that there are tech-industry interests aligned against it.  As such, perhaps the supposedly free-market libertarians at reason.com should look at the economic pressures on contemporary artists as a threat to culture rather than copyrights.  But most especially, they should stop presuming to know anything about the creative process and the ways in which artists draw from one another and still manage to create their own works.  There’s a reason the ability to do this is called a gift.  It’s special, it’s rare, and not everybody gets it.

Groups Send Pro-IP Letter to Congress

An open letter supporting intellectual property was sent today to the 114th Congress.  The majority of its signatories are conservative political organizations, which is reflective of the now-Republican majority in both houses; but the letter is also signed by several left-leaning organizations as well as academics representing non-partisan study groups and think tanks.  Titled Intellectual Property Guidelines, the letter briefly outlines a rationale for the new congress to support and maintain strong IP protections, emphasizing the following eight premises:

  • IP Rights Are Grounded in the Constitution
  • IP Rights Are a Fundamental Property Right Deserving the Same Respect as Physical Property
  • IP Rights Promote Free Speech and Expression
  • IP Rights Are Vital to Economic Competitiveness
  • IP Rights Must Be Protected Internationally Through Effective IP Provisions in Trade Agreements
  • IP Rights Are Integral to Consumer Protection and National Security
  • IP Rights Must Be Respected and Protected on the Internet
  • Voluntary Initiatives to Address IP Theft Are Positive

It’s too short a letter to warrant a summary, but I will quote one statement about the Internet, which reads, “A truly free Internet, like any truly free community, is one where people can engage in legitimate activities safely, and where bad actors are held accountable.”  This is consistent with the post I just wrote about accountability, arguing that if we too eagerly embrace the anarchy of digital life, this only leads to mob rule, and mob rule only leads to some form of tyranny.

There isn’t a lot of bi-partisan support for much these days, but over the few years since I have been paying attention to these issues, the fundamental principles of Intellectual Property rights appear to maintain support among most Americans across the political spectrum.  The basic concept that any individual may own the fruit of his or her intellectual labor, that it does not belong to the mob regardless of changes in technology, still seems to resonate with conservatives and liberals alike.  And that is certainly encouraging.