Tag: Featured

YouTubers losing viewers. What gives?

For years, “old model” artists have been told to quit whining.  Every time some well-known and well-established creator has spoken out about the issue of mass copyright infringement online, or the hazards that monopsonies like YouTube pose for all creators, the response from the “new model” gurus has always been nauseatingly repetitive.  These legacy artists should stop clinging to old models; they should get with the program, stop thinking about selling their works and protecting their copyrights because the internet has rendered such notions obsolete.  Plus, if creators would just wake up to the new realities, they would see a whole world of opportunity to make a living from their work without the evil gatekeepers.

I and others have tried to warn new creators that the “evil gatekeepers” have not been bypassed in the new model, but have instead been replaced by one or two gatekeepers that are at liberty to change the terms and conditions for use of their platforms without any obligation to the creators who helped grow the platforms. The above video by Glove and Boots does a good job (and an amusing one) of describing a phenomenon that apparently a lot of YouTubers are experiencing lately–lost viewers, allegedly due to algorithmic changes on the platform.

I haven’t dug into the details of this story but have heard similar complaints for at least several months now and can’t say that I’m surprised to see cracks in the YouTube model.  It will be interesting to see where things go from here. Presumably, YouTube needs to serve the creators whose works draw viewers to the platform, but I’m going out on a limb to predict that changes at YouTube will make the company look even more like a traditional gatekeeper than it already does.  Correspondingly, I will predict that the new creators will discover that they have something to learn from the old creators.  In particular, if artists like YouTubers are ever going to be in a position to negotiate terms for their work, they will realize that their power to do so is based on this old model called copyright.

NOTE:  I’ve shared this video because it does a good job of explaining what they and other creators believe is happening on the platform.  As for their use of clips from the film Thelma & Louise, I believe it would stand a decent chance of being held a fair use in an analysis, but that should not distract from the intent of this post.

Photo by manae.

Sucking Faster:  Is the Tech Backlash Happening or Not?

At the launch of this blog in the Summer of 2012, in the intro to a podcast interview with journalist Christopher Dickey, I cited a print ad from the 1990s for a video post-production facility. In the center of the ad was an old vacuum cleaner, and the headline read:  Without the right talent, high technology just helps bad creative suck faster.  It was a damn good ad that continues to resonate with me in considering the many challenges imposed by the effects of the digital age.  Especially its effects on democratic principles.

While everybody was being self-congratulatory over the “direct-democracy-in-action” defeat of SOPA in 2012, I argued that this alleged triumph was folly in disguise.  The same tools and methodologies employed to deceive the public in that campaign, I asserted, could easily be used by another manipulator to a more deleterious effect on the true foundations of American democracy. I even suggested that Citizens United was child’s-play compared to what that campaign had revealed was possible.  Then in September, Mark Zuckerberg had to issue a mea culpa in response to mounting evidence that Russian agents used Facebook to manipulate the American political process. “We will work to do better,” he said.  Though I wonder if they can.

In the wake of the 2016 election and the sudden discovery of fake news, the mainstream media finally showed up and started criticizing Big Tech.  Most recent examples include articles like “Silicon Valley is Not Your Friend” by Noam Cohen for The New York Times and “Is the Sun Really Setting on Silicon Valley?” by Maya Kosoff for Vanity Fair.  On a range of subjects, from foreign infiltration to advertising integrity to anti-trust and even the election of Donald Trump, numerous reporters have written about, or contributed to, what is broadly being called the “tech backlash” against the industry.

While there may be specific areas in which these platforms are being made out as scapegoats—and it’s me saying that—it is at least encouraging to hope that the public may finally begin to see these corporations as entities deserving scrutiny like any other industrial giant—and not viewed as the front-line defenders of democracy itself.  Just a couple years ago, no matter what underlying issue warranted criticism—copyright infringement, harassment, privacy invasions, etc.—the response was generally the same:  that these platforms are too essential for democratic progress (namely, free speech) to mess with.

I’ve always thought this premise was utter bullshit and still do, but inasmuch as I broadly disagree with this defense of Silicon Valley by Matt Rosoff for CNBC.com, there’s an instructive element of truth in one thing he says.  Rosoff points to polling data, which allegedly reveals that Facebook, Google, Amazon, et al still enjoy high favorability with the American public (i.e. that there is no tech backlash).  These data may be accurate, but they do not justify Rosoff’s generalization that “These companies’ products have helped society more than hurting it.”

Here, Rosoff addresses the topic of fake news, about which he writes, “Facebook was built to make the spread of ideas as frictionless as possible. If those ideas are angry, polarizing, ill-informed, ignorant (call them whatever you want) it reflects the people who are spreading them, not the platform on which they’re spread.” In other words, social media doesn’t make people idiots, people make themselves idiots.  True. But not entirely.

Rosoff is wrong to suggest that a platform like Facebook is an extension of the norm—that the medium itself does not substantially alter the manner in which we consume and relate to news, information, politics, and one another. And just because Mark Zuckerberg did not set out to upend the role of quality journalism in American democracy—he never intended to become a “news” site—that does not mean his platform has not had this effect on society. So, I would make a distinction between blaming Facebook per se and recognizing any number of its unintended consequences.

It is certainly well past time for the major platform owners to put away their childish mantras of disruption and behave like citizens.  They’ve moved fast enough and broken enough things.  Ironically, though, this vogue drumbeat of anti-tech reporting seems overly focused on areas where the major platforms are actually justified in saying there’s only so much they can do.  For instance, Cohen writes, “Facebook has endured a drip, drip of revelations concerning Russian operatives who used its platform to influence the 2016 presidential election by stirring up racist anger. Google had a similar role in carrying targeted, inflammatory messages during the election ….”

Recognizing that social media can be a centrifugal force is a step in the right direction, but we also cannot blame Facebook, or the Russians, for racism in America. That’s a cop out.  At best, we can recognize the ways in which these technologies help racism and other forms of hate and ignorance suck faster.  At the same time, it is insufficient to end the discussion, as Rossoff seems prepared to do, with the tired cliché that these platforms are neutral—that they’re only as good or bad as the people using them.

It isn’t quite that simple because in one way or another we’re all idiots—all ignorant about something and all capable of bias and anger, and certainly not all skilled in expressing ourselves through writing.  So, if the axiom remains true that medium is message, it should be little wonder that Facebook or Twitter is always one comment away from making enemies out of neighbors.  Then add the bots, the trolls, the manipulators, criminals, and the bonafide haters, and of course these platforms are the ideal fora for undermining the principles on which a democracy like ours is founded.

This doesn’t mean we should necessarily turn away from these platforms.  They can fulfill promises like connecting people and provide peer curation of useful news and information.  But it does mean that a new, digital-age literacy is required—one that remains vigilant to the manipulative nature of these platforms and, yes, one which holds the platform owners responsible to the extent that this is possible and effective.  To achieve that, however, requires taking them down off the pedestals of innovation and freedom and treating them like what they are—businesses.

In this regard, the concern should be that while the press has a good time plucking low-hanging fruit (like this story about Google serving fake news to fact-checking sites), the larger policy narrative may remain unchanged—the one which has thus far insisted that internet companies can and should operate outside the normal boundaries of law.  Whether the issue is online support of human trafficking, counterfeiting, fake news, harassment, revenge porn, or mass copyright infringement, the major internet companies continue to insist that their statutory liability shields (written when Zuckerberg was a pre-teen) are essential to our enjoyment of the many benefits their platforms provide.

What each of these individual stories in the “tech-backlash” narrative add up to, though, is the observable truth that these platforms yield plenty of results that are quite hazardous—even to the democratic values they claim to foster.  And as the rule of logic goes, if a premise is false, the conclusion doesn’t follow.  The premise that these platforms produce a net positive for democracy is, so far, proving to be false. Therefore, the conclusion that they must remain eternally shielded from legal liability and social responsibility does not follow.

Is a Tech Company Really Claiming Ownership of Marvel Characters?

You may have read recently that some of the major studios, most prominently Disney, are alleged to have infringed the patent rights in a certain motion-capture system used to make blockbuster films like the multi-billion-dollar Marvel movies.  Further, an article like this one in Hollywood Reporter by Eriq Gardner might give a reader the impression that a) the patent infringement allegations are indisputable; and b) that the plaintiff in this case Rearden LLC is claiming to “own” some of the famous CG characters featured in these movies. So what gives?

A lot. But not necessarily what the headlines imply. As for the patent infringement allegations, these are impossible to comment upon at the moment because 1) I know almost nothing about patent law; and 2) the entire backstory as to how Disney and other studios may be implicated is too complex to unravel in this forum. Suffice to say, we’ve got some former technology partners who are no longer friends, some dubious-sounding shenanigans involving the sale (or not) of shared (or not) intellectual property, and an inventor named Steve Perlman (Rearden’s CEO) who seems to have at least a few good reasons to be pissed off at somebody.

Time and the courts will sort all that out, but for the sake of addressing the copyright allegations in this story, we need to assume hypothetically that the studios are implicated in the patent infringement from which the copyright claims stem.  And let’s cut to the chase and clarify that Rearden cannot—and is not—claiming any ownership of the underlying pictorial or graphic works we know as Hulk, Deadpool, Iron Man, etc.  What Rearden does allege is that by making unlicensed use of its MOVA Contour technology, the studios simultaneously infringe Rearden’s copyright in the outputs of this technology.  Hence, cutting through the fog and high drama, the entire copyright claim appears to turn on whether Rearden’s outputs are in fact copyrightable at all.

MOVA Contour’s Outputs

As an example, Mark Ruffalo goes into a motion-capture studio where he grins, shouts, pouts, growls, and raises curiously adorable eyebrows in the mode of his inner Hulk.  He may be directed by the film’s director or some other member of the creative team, or he may self-direct to produce all the faces needed for every scene in which Hulk will appear. These performances, fixed in the computer drives during the process, are indisputably the property of Marvel Studios, which is owned by Disney.

The captured data, consisting primarily of multiple two-dimensional images is then input into the MOVA Contour system, where the software renders a pair of three-dimensional outputs:  what Rearden calls a “Captured Surface” and a “Tracking Mesh.”  These two assets then serve as a highly-detailed, digital armature onto which Marvel-employed animators then composite the CG Hulk, who will then grin, shout, pout, growl, and raise curiously adorable eyebrows in the movie, looking just enough like Mark Ruffalo to make the character transformation seem organic.

Rearden’s Claim

Rearden asserts that, although the Captured Surface and Tracking Mesh are never displayed in the final movies, these two outputs are, nevertheless copyrighted works and, therefore, every CG-composited element built upon these outputs is a “derivative work.” So, absent a licensing agreement to use the software and transfer ownership of the outputs to the licensee, the studios are alleged to have infringed Section 106(2) of the copyright act, which protects the derivative works right.  Indeed, if this claim has merit, it would be quite staggering to consider the number of infringements implicated.  One can almost hear the Hollywood-bashing copyright-haters chomping at the bit; but if that’s the case, they might want to belay the schadenfreude.

I imagine the studios’ motion to dismiss will be denied because the allegations seem to warrant further proceeding. But even if the copyright claim goes far enough to render an opinion by the court, I believe there is ample evidence in both scholarship and case law to conclude that Rearden’s outputs are not copyrightable and, therefore, cannot implicate the derivative works right.

Is MOVA Like Other Software Used to Make Creative Works?

At first blush, one might assume that the MOVA software is akin to using Word or Photoshop, which are used by authors all the time without any fear that Microsoft or Adobe can claim a copyright in the works made with these products—even if the author pirates the software!  But, Rearden counters this premise by saying that because their software produces a specific, repeatable output fixed in a medium, and because this output is produced almost entirely by the “labor” of the software, the analogy to Word isn’t quite right.

The difference they claim relies heavily on the case TorahSoft v. Drosnin (2001) in which defendant Michael Drosnin published a book based on outputs (effectively search results) that were exclusively the products of plaintiff ToraSoft’s algorithm. Rearden appears to be clinging to language in this opinion that supports the possibility that the output from computer software could be copyrightable; but the lion’s share of the opinion actually provides reasons why TorahSoft’s output was not copyrightable. And because much of the court’s reasoning in that case seems applicable to Rearden’s claim, it may be a risky citation.

In response to the assertion that MOVA is comparable to Word or Photoshop, Rearden states,“…in neither case does their work provide input to software that synthesizes an original expression that is distinct from the author’s or artist’s input.”  I wonder if that is, or should be, the standard. After all, between my writing these words and you’re reading them, there are several software authors whose work renders my expression into intermediary “works” that, if they were indeed copyrightable, would mean that everything created with digital tools is a derivative work of underlying works belonging to the tech companies of the world.  I don’t think the courts would view this outcome as compatible with the purpose of copyright.

Are MOVA’s Outputs Expressions or Copies?

Curiously enough, the “sub-millimeter precision” with which MOVA Capture does its job may be the evidence which most disfavors a finding that its outputs are copyrightable.  The standards for protection are “originality” and a “modicum of creativity.”  Originality literally means that the work is not a copy, and so far, “creativity” has been limited to works produced by humans. We may yet address copyright protection for works that are substantially produced by AIs, etc., but in this case, it seems Rearden is arguing that the human expression embodied in the software is tantamount to authorship of the software’s output, which it claims is separately “creative.”

While this may be possible in some circumstance, as TorahSoft seems to imply, I suspect Rearden’s argument will find slippery ground because the courts will view the purpose of MOVA software as one of making copies of performances that are the property of the defendants.  In this context, I believe Rearden’s software, especially as a component of the entire system, may be compared to patented devices that capture images which would strain to meet the standards for protection.

Copyright scholar Justin Hughes, whose paper on photography I have cited in other posts, asserts that a vast quantity of images—security camera footage, satellite photos, Google Street captures, even photos of public-domain paintings sold as postcards—should not stand up to claims of copyright because they lack the modicum of human creativity required for protection.  Assuming Hughes is correct, Rearden’s claim of copyright in its outputs would seem to fail under the same analysis.

More specifically, the case that comes to mind in answer to Rearden’s claim is Meshwerks v Toyota, decided in 2008 by the Tenth Circuit Court of Appeals. In that situation, Meshwerks asserted copyright protection in the outputs from its capture technology used to produce 2D, digital models of Toyota cars for advertising purposes. Supplier Meshwerks actually performed a considerable amount of creative labor—in collaboration with software—to produce the outputs. This stands in contrast to Rearden, whose claim relies solely on the products of the software.  Nevertheless, and with stated respect for the amount of work involved, the court held that Meshwerks outputs were not copyrightable because their purpose was to create the best copies possible of designs belonging to Toyota.  From the opinion, which partly quotes Nimmer on Copyright:

It is certainly true that what Meshwerks accomplished was a peculiar kind of copying.   It did not seek to recreate Toyota vehicles outright-steel, rubber, and all;  instead, it sought to depict Toyota’s three-dimensional physical objects in a two-dimensional digital medium.   But we hold, as many before us have already suggested, that, standing alone, “[t]he fact that a work in one medium has been copied from a work in another medium does not render it any the less a ‘copy.’ ”

So, if we compare this to Rearden’s claim and the Hulk example, Disney certainly did not design Mark Ruffalo, but they do employ him to perform the only creative work in this entire process—that of making faces as Hulk.  And I would argue that, akin to Meshwerks, the function of MOVA software is to copy that performance (in this case, from 2D to 3D). In fact, it is the triumph of the system’s capacity to deliver such precise copies which disfavors a conclusion that its outputs are “original” expressions of “creativity.” The process is no more creative than a CAT scan—far less creative, it seems, than the work performed by Meshwerks, which was held not to meet the standard of protection under copyright.

It’ll be interesting to see if any of the usual anti-copyright suspects come out to play on this one.  Presumably, they should disfavor Rearden’s claim of copyright for many of the reasons cited here, but siding with Hollywood studios may be more than they can bear.

Image by kentoh.