Tag: google

Will the EFF Tolerate Any Copyright Enforcement?

 

Maybe the folks at the Electronic Frontier Foundation could save themselves a lot of repetitive work if they just write a blanket statement declaring once and for all that they believe copyrights should never be enforced online in any context whatsoever.  Because no matter what proposal they encounter, it seems they will always grab their box of fridge-magnet hyperbole and cobble together a statement designed to make it sound underhanded and nefarious.

Of course we’ve come to expect that if a proposed copyright measure is legislative, the EFF will call it something like “government overreach.” But apparently, if a proposed action is part of a voluntary initiative by industry, they’ll call it “shadow regulation.”  That’s exactly how Jeremy Malcolm, Senior Global Policy Analyst for the EFF, refers to a recent agreement in the UK reached by Microsoft, Google, and representatives of major copyright holders. Brokered by the UK Intellectual Property Office, the parties negotiated a voluntary “code of conduct” with the purpose of demoting search results for URLs that have received a certain (undisclosed) number of DMCA takedown notices.

Malcolm correctly observes that Google was already using DMCA data to demote certain sites in its search results, but the EFF is still sounding alarm bells over two factors in the development of this agreement:  1) that the meetings themselves, and some of the agreed-upon terms are secret; and 2) that the agreement was allegedly reached in response to an “explicit threat” by the UK government to take legislative action if the parties could not come to terms.   So, referring back to my original accusation, if the government mandates that platforms mitigate copyright infringement, the EFF thinks it’s wrong; and if the platforms voluntarily collaborate with rights holders to mitigate copyright infringement, the EFF still thinks this is wrong.  See where I’m going with this?

The EFF complains that “the public” is not represented in these “shadow regulation” agreements—an accusation that earns a cartoon double-take because this proclivity for exaggeration only feeds the illusion that the public has any say in the operation of these search companies in the first place.  We have a measure of market power, as we do with all companies, but Google and Microsoft do not seek public debate on the manner in which their search algorithms function or are adjusted. And it should be obvious to users by now that Google’s search results reflect some combination of Wikipedia, paid priority, and popular trend—none of which guarantees that the most relevant or best-quality results will top the list every time.

How good is search these days anyway?

With regard to my last post about advertisers seeking better value online, and the role of fake news in that story, I happened to do a Google search for the term “pizzagate.”  And what do we get?  Results #3 and #4 are both utterly bogus sites designed to attract users who may be inclined to believe that Hillary Clinton really was running a child sex ring through a D.C. pizzeria. Y’know, because search quality.

Result #4  pizzagate.com is a classic example of what happens when some opportunist buys a URL based on a trending topic and then populates a page with keywords, videos, images, and links that optimize SEO in order to generate revenue with traffic to posted ads. It’s a site full of garbage that probably makes its registered owner some money, but which provides no social value of any kind; and it sits above the fold on the first page of Google’s search results because that’s how the system works.

This capacity to manipulate search results—all in the name of unfettered “innovation”—has done considerable harm to journalism, scientific knowledge, authors of creative works, local businesses, major advertisers, users, and even the democratic process itself.  So, unless Google and Microsoft have ready solutions for improving all of that, the EFF can spare us its hand-wringing over the search-result demotion of websites that engage in chronic copyright infringement.  Yet, Malcolm writes, “[Google] must be very careful that its acquiescence to this shadowy regulation doesn’t escalate into a series of capitulations to copyright holder demands.”  Fridge magnets.

As reported yesterday, Google may be about to “capitulate” to new advertiser demands because (hold onto your beers) this is all just business. People really should stop pretending the internet industry is something special—as if the decisions made are not business decisions and as if those business decisions are not going to require negotiation with other business interests and with government.

But because we’re talking about the internet, the EFF and others seem to imagine that the public enjoys general oversight—as if Google were Congress.  We’re just customers, either happy with the services or not.  If anything, the pervasiveness of Google’s control over so many aspects of the digital market should be a far greater concern than whether or not the company agrees to work with rights holders to mitigate infringement. And in fairness, this is where the EFF’s strengths as a public advocate seem best directed.  Real issues of concern like privacy should give that organization plenty to do, particularly in the current political climate, but copyright enforcement really isn’t the side door to social injustice they keep portraying it to be.

In general, copyright enforcement in the digital age benefits consumers and creators just like it did before the digital age. The only players who substantially benefit from zero enforcement are the major web platforms, and the EFF should stop doing PR (even if it’s not their intent) for these multi-billion-dollar companies. Meanwhile, if the platform owners and creative industries collaborate to foster a more legal, fair, and sustainable digital market for creative works, this will benefit consumers, creators, and economies overall.

EFF Manufacturing Scandal in the Service of Google

eff-pinnochio2

On October 25, four days after the unprecedented removal of the Register of Copyrights from her office, the Electronic Frontier Foundation released a post on its Deeplinks Blog asserting rather stridently that the Copyright Office never would have reviewed the FCC “set-top-box” proposal if not for the urging of the MPAA.  I think we can now say that there is officially no line EFF will not cross, no lie it will not tell, in the service of Google’s interests over the public interest, which the organization claims to serve.  The thesis of the blog post boils down to the following syllogism:

1. We have argued that the FCC “set-top-box” proposal does not implicate copyright law.

2.  Because we are obviously correct in this view, the Copyright Office should have agreed with us.

3. Therefore, the only explanation for the Copyright Office disagreeing with us is that they must have been pressured by the MPAA.

And so, the EFF went looking for proof of the motion picture industry’s clandestine influence on the Copyright Office via a FOIA request, and they released supporting documents with their blog post that they know most people won’t bother to read.  If anyone does read the super secret emails betwixt FCC, MPAA, the Copyright Office, and the USPTO, they will discover (hold your breath) requests for meetings to discuss issues of concern with regard to the FCC proposal!  Ah ha! Meetings!

I know this may be a shocker, but there is nothing illegal or improper about any stakeholder, operating above board, requesting meetings to discuss concerns they may have with a proposal by any federal agency.  And emails to arrange meetings—I mean literally communications as banal as, “Hey, does next Tuesday work for you?”—are not subject to any rules regarding disclosure because they’re not substantive.  Nowhere in the “exposed” communications presented by the EFF is there any evidence of motion picture representatives drawing conclusions for Register Pallante that she would not have come to on her own with regard to the FCC “set-top-box” proposal.  The FCC proposal, like any other federal agency proposal, allows for comments from multiple stakeholders that become part of the public record and which members of any other agency may read and consider.  It is also neither illegal nor improper for a stakeholder to send an email to a member of an agency to say, “This is our statement for your consideration.”

The broader point is that one does not need to be an expert at the level of Maria Pallante or MPAA’s attorneys to consider that any proposal which fundamentally alters a licensing paradigm between producers and distributors—as the FCC proposal clearly does—is going to have at least some copyright implications.  Had the EFF made a more nuanced argument, that would be one thing, but to assert that the Copyright Office simply never would have entertained a copyright angle without pressure from the MPAA is just an outright lie.  What the EFF doesn’t like is that their position on the FCC proposal is wrong, and so they’ve tried to manufacture a scandal on the heels of Pallante’s unprecedented and bizarrely orchestrated removal from office.  Why?  Presumably, because they know that at least a segment of the public will find the Hollywood-intrigue narrative easier to follow and far more dramatic than the more complex, but less interesting, truth.

On the other hand …

If a hint of scandal is what the reader wants, consider the October 25th notice from the Campaign for Accountability, which asked FCC Counsel to investigate emails between the FCC Chairman Tom Wheeler and Google VP Vint Cerf.  What’s the problem? Unlike innocuous emails requesting meetings, the FCC’s rules require disclosure of ex parte communications that amount to substantive comments on policy.  In its letter to counsel, the CFA cites an April 8th email from Mr. Cerf to Chairman Wheeler expressing his substantive views with regard to the commission’s April 1 notice on protecting consumer privacy within the ambit of the “set-top-box” proposal. In case you’re not following the bouncing ball, Google likes to harvest user data and doesn’t have great track record on the privacy thing.

See what happened there is that a Google executive expressed a relevant, policy-focused comment via email pertaining to the FCC proposal, and the FCC was supposed to disclose the comment and didn’t.  At least that’s CFA’s view.  Whether or not there are more communications of this nature remains to be seen, but against the backdrop of Google’s now well-documented influence throughout the current administration, it’s hard to imagine that anyone is still believing the narrative that “Hollywood” is pulling the strings with regard to the FCC proposal.

Perhaps more significantly is that while the EFF pitches a non-scandal in an effort to erase the copyright implications of the FCC proposal, they seem remarkably unconcerned about those privacy implications, which one would think should to take precedence for an organization claiming to defend consumers in the digital market.  Why?  Assume for the moment that the producers are wrong about the proposal undermining the investment model that creates television shows. That would still leave the privacy concerns with regard to what kind of data Google would be allowed to harvest from the magic TV box it wants to put in your home.  The EFF’s overplayed hand on the copyright issues combined with their silence on the privacy issues related to the FCC proposal suggest that this organization largely cares about one thing:  whatever Google wants.

Motion Picture Unions Opposed to FCC Set-Top Proposals

Photo by ponsulak Pond 5.
Photo by ponsulak Pond 5.

As noted several times on this blog, it takes a lot of highly skilled people to make a film or TV show, and these people generally do not own any copyright interest in the works they help make or any equity in the production companies.  Motion pictures and television production is a project-to-project business. Crew members and performers are not full-time employees of either studios or production companies and may go months between jobs; they’ve been “gig-economy” workers since long before anyone thought that term was a new thing.

Just like most labor in the United States, today’s motion picture craftspeople are the beneficiaries of hard-fought rights—many negotiated decades ago—to share in the financial rewards of successful products they do not own.  Films and TV shows are mostly made by middle-class, freelance workers whose average, annual incomes comprise not only day rates and overtime, but also residuals and health and pension benefits.  These terms are negotiated and managed for most crew and performers by the unions DGA, SAG-AFTRA, and IATSE. These unions are opposed to the FCC “Set-Top Box” proposal because, as it stands, the proposal would break the licensing structure on which their compensation packages are based.

To be a sustainable workforce, performers and crew members generally need to remain on the net-positive side of several averages—average number of days worked, average number of shows worked that succeed, and average number of shows that succeed in the market overall.  By taking the macro view of the ways in which these workers are compensated over time, it’s very much a rising-tide-raises-all-boats paradigm.  The successful show that Props Master A works on feeds the health and pension program of Make-up artist B, who might work a show that doesn’t make it. The spread of investment across multiple shows keeps the pool of skilled labor generally sustained among the various gigs and periods of unemployment between gigs.

Photo by sokolodv Pond 5.
Photo by sokolodv Pond 5.

It should be clear to anyone that if you disrupt the means by which labor is compensated, labor has a habit of not working.  And as stated in previous posts on this subject, the FCC proposal cannot be called a consumer-focused plan to introduce better and cheaper TV options if the plan simultaneously kills the means of production. This is exactly what the proposal can do by enabling companies like Google to create a parallel, commercial video service without licensing any of the programming.

It’s Not About Boxes

FCC Chairman Wheeler emphasizes the amount consumers spend renting set-top boxes from cable companies, and then “digital rights” groups like EFF and Public Knowledge echo the sentiment that this proposal is about innovative technology (just like the VCR) that will give consumers more flexibility in viewing options for programming that we’re already paying for. And it will unleash us, they say, from the rental boxes owned by the cable companies.  But the rental fees thing is a smokescreen for what’s really going on because the box rental part of our cable bill isn’t the biggest line item; there’s nothing in the proposal that would technically lower the cable bill; we’re free right now to go buy boxes and not rent from the cable providers; and the new licensing market is already providing consumers with viewing options way “beyond the box.”

The big talking point that is most likely to confuse consumers is that the new box Google wants to sell us would only make programming available for which “we are already paying” via the Multichannel Video Programming Distributors (e.g. cable companies).  This is the central reasoning why supporters of the proposal claim that it does not implicate a copyright infringement, and it’s the kind of talking point that will sound reasonable to consumers.

But this reference to our subscription fees completely misrepresents how the producers—and therefore all the labor represented by the unions—get paid for the programs they make.  Our subscription fees to MVPDs do not pay to produce multi-million-dollar TV shows; they never could.  The license fees paid by the MVPDs to the producers are what pay for production, and those licenses are predicated on a complex variety of ways the MVPD expects to exploit its limited or exclusive access to the content.

The simplest and most obvious example is advertising. If, under the FCC proposal, the MVPD that has licensed programming is forced to deliver that programming free of charge to Google, which may then re-distribute the content however it wants and then advertise against the programming from its own ad services, the MVPD’s ad revenue will go down almost immediately.  So, when a new slate of shows is produced, the MVPD’s incentive to pay current market-value license fees is diminished while Google, which captured part of the ad market, isn’t paying anything at all.  Secondarily, new-market distribution channels like Hulu would see no incentive to license programming under such a regime, which gives lie to the notion that this entire proposal is about competition to benefit consumers rather than what it is, which is a government giveaway to Google.

I never quite understand why it should be hard to recognize that less is less—that if license fees for programs go down or if new channels for licensing are cut off, there can be no result other than less production or production of lesser quality. And the FCC proposal would appear to create exactly these conditions—possibly more quickly than people think.  The producers and MVPDs aren’t blind.  If the FCC proposal were to pass, they’ll revise their business strategies immediately, and that could include producing a lot less work within just a couple of years.  At a time when we’re clearly seeing a Golden Age of the small screen in quality writing and production—and in flexibility of viewing options—it is unfathomable that the FCC would advocate unraveling the licensing regimes that have made all this bounty possible.

What’s in it for Google?

I know I’ve repeated Google in this post despite the fact that there are other manufacturers hoping to sell boxes under the FCC proposal.  But if the value of getting into this line of business is predicated on advertising and data mining—which it has to be—it’s pretty hard to imagine that Google would not very quickly dominate this space and become the only game in town.  I understand Radio Shack, for instance, plans to make boxes, but as that company doesn’t have an online ad business or a data mining business, their boxes would presumably serve Google’s pipelines for a piece of the revenue.  If that’s how this would shake out, the “competition in boxes” story is pure illusion.

If the producers, the MVPDs, and the unions are all correct that this plan can only undermine the means of production and inevitably reduce production quantity, quality, or both, what does even Google—let alone the rest of us—gain in the long-run?  When variety of quality content is reduced, then advertising value is reduced and so is data mining value.  Google has a long track record of earning revenue by exploiting works it hasn’t licensed; but in this case, its parasitical model can actually limit the means by which the company typically generates revenue.  So, what’s the long-term plan here?  It’s hard to say. But it’s not hard to see in the short term how this proposal is bad for creators in the film industry and bad for consumers who want to see great television continue to thrive.