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.

Is accountability losing value?

“I don’t know how that bong got in my sock drawer! And what’s a bong anyway?”

When was the last time you used the I Didn’t Know defense; or if you’re a parent, when was the last time you were confronted with the I Didn’t Know defense? Did it work? Not so much, right? But it often feels lately as though the soul of the IDK defense is gaining social clout as some of the darker realities of Web 2.0 collide with some perfectly good laws written in the era of Web 1.0. As such, does the technology we expect to provide transparency simultaneously diminish the value of accountability?

Provisions in U.S. laws such as the Digital Millennium Copyright Act of 1998 and the Communications Decency Act of 1996, provide important safe harbors that protect site owners against civil litigation* for actions performed by third parties while using their sites. But when a site is a large enterprise with millions of pages and tens of millions of users around the world, and if it is ad-supported so that all traffic has a profit motive, the safe harbor thing becomes a rather complicated point of contention between site owners and any party harmed by activity on a site.  The scale of the site, the number of users, the volume of UGC (user generated content), and the safe harbor provisions all give a site owner considerable leverage when applying the IDK defense, even in instances where we might reasonably intuit that the owner knows precisely what’s happening on his site and more or less what certain activity is worth to him financially.  While safe harbors are vital protections — I wouldn’t want to publish without them — the practical reality is that an owner can theoretically have it both ways;  he can profit from illicit traffic by doing nothing to stop it even if he knows it’s there, and also claim to be “shocked gambling is going on in his establishment” if he is named in a suit or indictment.

The fundamental argument of ignorance is consistently the basis of defense for site owners ranging from piracy sites to Google to salacious gossip sites to the now-busted dark web drug-trafficking site Silk Road, whose alleged operator is on trial in New York. Prosecutors are charging founder Ross Ulbricht with being both mastermind and manager of a $1.2 billion criminal enterprise, and Ulbricht’s primary defenses appear to rest on I didn’t know and It wasn’t me, meaning that he denies being the man behind the avatar Dread Pirate Roberts, known to be the operator of the site. I won’t presume to comment on the particulars of the case other than to guess that with an alleged $80 million in Ulbricht’s account at the time of his arrest, if he’s not the guy, he’s probably got some ‘splainin to do.

But it was actually the comments I read below one story about the Silk Road trial that spawned this post. Unconcerned with the gravity of unchecked criminal activity occurring on that anonymous marketplace — activity that reportedly included murder-for-hire schemes — the comment that got my attention was one which stated that the only reason Silk Road was shut down and Ulbricht indicted is that the government didn’t like that it was a market over which it had no control. Maybe this is the rant of one naive kid who represents a tiny population of naive kids, but I have to wonder because the spirit of that comment is just a slight variation on the themes of the Web as Wild West or the entrepreneurial zeitgeist of the industry with its imperative disrupt everything. It all smacks just a bit of embracing anarchy, which is often confused with freedom, though is in fact the fertile ground of feudalism or totalitarianism.

“The mob is the mother of tyrants.” – Diogenes

Again, I strongly believe safe harbors are essential, and I am not qualified to suggest any workable revisions, but I do think the larger notion of accountability may be losing value the more we live in a hybrid society between the real and the digital. As we connect to one another, we also diffuse responsibility for certain actions, which has the opposite intended effect of building those connections because that diffusion actually places greater distance between our actions and those who may be harmed by them. Because the Web spreads responsibility for actions across thousands or millions of people, this often feeds the exact opposite types of behaviors that are presumed will manifest in a self-governed environment.

We saw this with Reddit’s initial refusal and then reluctant agreement to shut down threads devoted to exploiting leaked nude photos of celebrities. The apparent logic among Reddit’s management and users was that because they did not steal the photos and the photos are now “out there,” nobody is really responsible for their distribution or exploitation; and since the images are tied to a news story, the photos are kinda like freedom of the press, right? In a non-web context, like TV news, we’d probably say that showing the photos would be a non-journalistic exploitation of these individuals in order to drive ratings. I’m not saying TV never does this, only that we seem to recognize it for what it is via that medium. Yet, when the medium is a web platform like the boards of Reddit, and the editorial decision to “broadcast” certain material is crowdsourced, somehow the moral assessment of that exploitative decision is skewed because the mob is now responsible, which means nobody is responsible.

And one question we should ask is what happens when illegal or harmful activities become more automated, when accountability is even further removed from individuals to whom laws and judgments may apply? Think about it. Illegal or tortious actions can be committed by bots the same way junk email is delivered. Or maybe you go on vacation for a few days only to find out that your “smart devices” ordered up a few bottles of oxycontin, some assault rifles, and a fake ID. Sound absurd? Maybe, but . . .

Check out this story about a pair of Swiss programmers who created an art installation called The Darknet: From Memes to Onionland, which offered a display of items that were purchased by a bot shopping autonomously on a dark web marketplace akin to Silk Road. The concept was to give the bot a weekly allowance, see what it purchased of its own accord, and then display the items in a gallery setting. Interpret the statement as you will. I would personally defend the actions of these programmers as an artistic expression, although the article cited does raise interesting questions as to who might be responsible for the illegal items such as ecstasy and a counterfeit passport that were purchased by the bot. In fact, the artist/programmers stated that they take full responsibility for this contraband, which is refreshing, and I certainly don’t think they should face any criminal penalties for possession. But their experiment suggests to me that even before we answer some of the tricky challenges posed by safe harbor provisions, the IDK defense is about to gain a new phrase: “Wasn’t me. The bot did it!”

*Changed from original publication, which erroneously referred to liability and criminal activity.  Thanks to a friend for correcting the mistake.

Zoë Keating Ponders YouTube Service

I have to direct readers’ attention to this blog post by composer and cellist Zoë Keating.  It is the clearest articulation I have yet read about the rock-and-hard-place terms demanded of artists who are considering participation in YouTube’s paid streaming service Music Key.  Keating outlines some of the non-negotiable terms she doesn’t like, for instance that her entire catalog becomes fair game anywhere on YouTube and that she must release new work on Music Key simultaneous with any other release. And if Keating or any other artist does not wish to participate in Music Key, no problem, Google will simply throw your work to the wolves.

What does that mean?

Presently, Keating and other artists participate in YouTube’s Content ID program. The way it works is when someone uploads a video with Keating’s music on it, robots identify the track and send her a notice giving her options, including an option to monetize the video.  Many artists, Keating included, choose either to let the video remain without ads, or choose to monetize it with ads; and they typically only seek removal of offensive or unlicensed commercial uses.  But for all the noise people like to make about “new business models,” the Content ID program cannot generally be called an opportunity for artists, so much as it is a band-aid applied long after the bleeding of music’s value had begun.  It’s YouTube saying, “Well, people are going to use your music online and we’re going to monetize that, and there’s not much you can do about it, so here’s a slice of the pie.”  But nobody should think for a minute that Content ID is a revenue stream that most artists consider a portion of sustainable income. Still, it does provide artists a view of where their music is being used on the service, and this certainly has value.

But along comes Music Key with terms artists don’t like — last year there were several reports about the meager revenue shares in the offer — but an artist who declines to participate in Music Key will automatically lose his/her Content ID account.  As Zoë Keating describes, this puts her in the unfortunate position of potentially removing almost 10,000 videos and upsetting thousands of fans, or gritting her teeth and accepting YouTube’s exploitative terms for Music Key. But, the implication here is actually worse…

If an artist were to decline the Music Key deal, and next month there were 40,000 videos using her music, she could neither participate in the revenue nor very effectively remove those videos due to the slow and cumbersome DMCA notice-and-takedown process. Plus, Google’s bots are no longer identifying her music for her because she’s had that account revoked.  And if she did avail herself of DMCA for removal of any videos, YouTube will show users its frowny face icon, and the EFF will catalog the removal with the Chilling Effects database, making the artist look like she’s being a greedy, mean, censor.  See, it’s not so much a new model as it is a very old model coming back into vogue.

But Zoë Keating makes a very important point in her article about copyright itself.  If you pay attention to the facts she lays out — and she’s much friendlier about it than others, including me — you will notice that the central conflict she has with the YouTube predicament is the limiting of her choices as an artist.  This is something people continue to overlook:  that in most cases, what the artist wants is to retain his or her right to decide how works are used — by whom, for compensation or not, the timing and manner of presentation and distribution, etc.  People talk about copyright as though its last remaining use is for big media corporations to scrape every nickel out of a property it bought forty years ago. And they like to make generalizations like, “the labels have screwed artists for years.” But no label was ever able to say, “Hey, take this deal, or I’ll just give your music away and sell ads to the crowds I draw.” Here’s Keating on the comparison between the old boss and the new boss:

“But I want to decide what to do when. That is a major reason why I decided in 2005 to self-publish rather than chase after a record deal. I am independent because I didn’t want a bunch of men in suits deciding how I should release my music. For 10 years I have managed to bushwhack a circuitous path around them but now I’ve got to find a away around the men in hoodies and crocs . . .”

Others have said it before, and Keating is saying it again. The new boss wears a new uniform, but he’s just another boss. Only this time he has a worse deal in one pocket and a rock in the other.  Or as Keating puts it, having been an early evangelist of the Internet’s cultural potential, “the revolution has been corporatized.”