Tag: Internet Association

Ciao Internet Association. It’s been weird.

IA has made great progress on its mission to foster innovation, promote economic growth, and empower people through a free and open internet. As this chapter closes, member companies remain committed to advancing public policy in support of this mission and will continue to work with stakeholders in other capacities. – Board of Directors Statement on IA’s Future –

Thus spake the Internet Association upon announcing that it will cease operations at the end of this year; and anyone engaged in advocating the rights of creative professionals (i.e. copyrights) shall be forgiven their moment of schadenfreude. While it would be inaccurate to say that this lobbying organization was formed by the major internet platforms in response to the anti-piracy bills SOPA/PIPA, it was certainly no coincidence that IA formed concurrently with Silicon Valley’s extraordinary efforts to kill that legislation, which Congress abandoned in January of 2012.

It was the holiday season of 2011 when nearly every Member of Congress and the Obama White House expected the anti-piracy bills would pass easily into law. Neither Google, nor any of the internet giants, had much of a lobbying presence on Capitol Hill, but they did have an unprecedented advantage as an industry insofar as they owned the platforms we were all using to “share information” and shape one another’s views. They controlled the algorithms that prioritized results in a search or a newsfeed, and they had the data to show how effective a dumb meme could be for animating political action.

I believed then, as I do now, that the Stop SOPA campaign was a primer in how to affordably and effectively unravel a democratic republic—a little lie that taught others how to tell much bigger lies. At the same time that organizations like the EFF were congratulating themselves and the public for the “grassroots” effort that stopped those bills, Silicon Valley companies were already having discussions about getting their act together in Washington.

In addition to Google growing its own presence in D.C. from a whisper to a roar, they joined with Facebook, eBay, Amazon, and others to form the Internet Association, which was announced in the media in July of 2012—just six months after the defeat of the anti-piracy bills. The unstated mission of IA, couched in vague terms like “innovation” and “openness,” was arguably to maintain the status quo and keep the pesky laws of the “real world” from infecting the self-governing idealism of cyberspace.

Now, in a very different climate in which we even see Facebook make a show of asking Congress for regulation, it is fair to say that the status quo the IA was formed to maintain is a lost cause. Further, according to Politico, the organization’s funding imploded on the weak link that the giants’ interests are unsurprisingly not wholly aligned with the smaller members. The article quotes Yelp senior vice president of public policy Luther Lowe, using a colloquial acronym for Google, Apple, Facebook, and Amazon and stating, “This org could’ve saved itself years ago by kicking out everyone with a market cap greater than $500b (i.e. GAFA). I made this suggestion to the leadership a few years ago, but it was shot down, so we quit.”

Pause for schadenfreude. Go ahead. You’ve earned it.

In 2019, Netflix left the Internet Association and joined the Motion Picture Association—the same organization that lobbied for the anti-piracy bills and which was therefore cast as the leviathan that would “destroy the internet” and “end free speech” for the sake of a few more dollars for its movies, and all because the studios were “clinging to the dead model of copyright in creative works.” The Netflix switch was hardly a surprise for a company that was, in fact, a movie studio, but the point is that the foundation of IP protection for creative works endures while the underlying rationales for killing anti-piracy legislation in 2012 have not aged well.

Netflix, like any film producer, entertains millions of viewers while vague Silicon Valley’s vague allusions to speech rights and connecting people stammer in hearings on Capitol Hill, and lawmakers confidently announce that the free ride for internet platforms is over. Whether that means revision to liability standards like Section 230 or meaningful antitrust enforcement, etc. remains to be seen—especially while bipartisanship on these issues remains entangled in the kind of disinformation that metastasized on social media, and which is still endorsed by a consequential faction of the GOP.

While I am highly skeptical that legislation alone will help us restore the conduct necessary to maintain a healthy democracy, I do believe that there are policy-based solutions to particular harms like social media addiction in teens, nonconsensual pornography and harassment, predatory antitrust conduct, and, yes, rampant copyright infringement.

Such matters can and should be addressed through legislative action, and in that regard, the end of the Internet Association after just under a decade of operation should affirm at least two truths:  first, that maintaining the laissez-faire approach to cyber policy was always folly; and second, that there is no “the internet” to defend against public policy. The internet is just a network of machines upon which every individual and every business, small and large, is mutually dependent. So, ciao, Internet Association. It’s been weird.

DMCA Hearings III (Part 2): Independent Creators Must Remain in the Foreground

How many times have comments about copyright included some variation on the theme “I would not pirate, if the revenue went to the artists instead of big corporations.”? Not only is this sentiment a fallacy based on ignorance about how the creative markets work, but these insincere claims to support the real creators ring especially hollow in context to those now advocating the status quo of DMCA Section 512 (a.k.a. the Notice-and Takedown system).

“…authors and small creators who are already struggling against the tide of tech disruption of the creative industries are excluded.”

I highlight these words from the testimony of Douglas J. Preston, President of The Authors Guild, because if the Senate Judiciary Committee hears one message in response to its inquiry about the Notice-and-Takedown system, it is this:  Section 512 provides no viable, sustainable remedy for the independent creator.

American copyright law’s first animating principle is to secure the exclusive rights of the individual author in order to provide an incentive to produce and distribute new works. One glance at Preston’s testimony, listing the number of domestic online platforms that currently support rampant book piracy, and it is easy to understand why no writer—or sole creator in any medium—can possibly afford to pursue infringement at the volume and speed at which it persists.

Google, eBay, Facebook, and LinkedIn are all cited in Preston’s account of the various ways in which authors are confronted with ads, links, or user-generated sources to obtain pirated digital copies of their books. “Google makes it particularly easy to get to these pirate sites and unknowingly buy pirated copies,” Preston states. 

Members of the committee should underline that sentence. Because those words unknowingly buy refer to a customer who does not intend to pirate (is not looking for a freebie) but has been misdirected by Google’s search engine toward the purchase of an infringing copy instead of a legal one. Nevertheless, Google and its industry colleagues have insisted upon the narrowest interpretation of their responsibilities under the terms of DMCA, while asserting in these hearings that Section 512 is working “as intended.”

Testifying on behalf of the Internet Association (an organization founded concurrently with the anti-SOPA campaign of 2011/12), Jonathan Berroya presents a picture of the DMCA operating very well for all parties. “The balance Congress sought to achieve in section 512 in 1998 is not askew,” he states. “Indeed, the legislative intent of fostering collaboration among stakeholders and the growth of a robust and innovative internet has been decidedly achieved, resulting in the development of cutting-edge solutions to infringement and other voluntary measures.”

Berroya could not have used the word collaboration more often in his testimony without it becoming unseemly. But after years in which the major OSPs grew their dominant market positions, partly by refusing even to cooperate with rightsholders, the Internet Association, can, at best, half-heartedly support its “collaboration” claim by pointing to various agreements among OSPs and corporate rightsholders (e.g. YouTube & major labels). And even this hodgepodge of imperfect licensing, tracking, and enforcement arrangements does nothing for independent creators, who lack the resources and opportunities that are available to industrial rightsholders.

This is why Mr. Preston’s presentation, on behalf of book authors, makes what may be the most salient point in the 512 review—that most creators act as their own copyright enforcement departments in addition to doing the work of authorship. Copyright law has always envisioned that the owner would enforce his own rights, but not at a scale of tens of thousands of infringements each year.

As I wrote in my first post about this hearing, the internet industry tends to bring generalizations and a litany of irrelevant talking points to a debate where independent rightsholders present both quantitative and qualitative evidence describing their actual experiences using Notice-and-Takedown. For example, the Internet Association highlights the value of the streaming market to the entertainment industry and consumers, which is true but largely unrelated to the question Congress is asking.

Aside from the fact that the streaming market has some bugs in it (e.g. songwriters are being clobbered by artificially low royalty rates engendered by the imbalance of the 512 immunity regime), the success of popular platforms like Netflix, Hulu, Amazon Prime, et al is not the result the Notice-and-Takedown/immunity provisions of 512. On the contrary, these types of platforms were fostered by Title I, or Section 1201, of the DMCA and are, therefore, a subject for a different hearing. Almost as irrelevant is the Internet Association’s attempt to misdirect the committee’s attention to foreign-based pirate sites …

“… it should be noted that most…infringement occurs overseas, beyond the reach of the U.S. Copyright Act. The U.S. government must keep up its pressure on foreign governments to pursue extraterritorial websites entirely dedicated to piracy and should avoid the temptation to subject legitimate platforms to unduly onerous standards because the most egregious offenders are out of reach.”

Although it is true that pirate sites operating overseas are the largest facilitators of mass infringement, the more relevant issue before the committee remains the substantial amount of infringement facilitated by some of the largest domestic platforms. And this includes facilitating access to foreign-based sites. As Berroya himself notes, the U.S. Copyright Act does not reach these foreign actors, which is one reason rightsholders have proposed various methods to starve these site operators of user access or revenue, or both. But to date, the major members of the Internet Association have spent millions in PR and lobbying dollars opposing every initiative in this regard, both in the U.S. and abroad.  

So, Berroya’s allusion to foreign piracy reads like another round of shell-game—one that is very familiar to rightsholders—in which the internet industry pays lip service to solutions like “keeping up pressure on foreign governments,” which they will then oppose through the very large public megaphones that they themselves own and operate. In some cases, even the aforementioned voluntary anti-piracy measures have been strenuously criticized by the “digital rights” groups whose funding comes from the same companies comprising the Internet Association.

Finally, echoing the sentiments of other critics, the Internet Association repeats the fallacy that the Copyright Office, in its Report on Section 512, neglected to consider “the public” as a stakeholder. Berroya testifes …

“While it is understandable that the Copyright Office would focus on the impact of section 512 on copyright owners and copyright law, an assessment of the DMCA safe harbors is incomplete without meaningful consideration of other values important to users, such as free speech, economic and cultural citizenship, and privacy.”

Although that sounds very pretty, it is more smoke fogging the debate. The speech right is not protected by online platforms, and copyright infringement is not protected speech. It is hardly conclusive that “economic and cultural citizenship” has been vastly improved by digital life for a majority of citizens. And with regard to privacy, most people can easily identify which members of the Internet Association have been caught invading privacy and abusing user data. Certainly, it is not the authors who are harvesting and selling data about millions of Americans. 

So, let us stay focused on the subject at hand, which is whether Notice-and-Takedown is working to balance the needs of OSPs and rightsholders. And let us not be distracted by references to online activity or technological developments that have little or nothing to do with the DMCA. It is hardly surprising that the Internet Association, with its membership of the wealthiest and most powerful OSPs in the world, claims that Section 512 is working as intended. No doubt it’s working beautifully for them.

But it is also not surprising that the members of the Senate Judiciary Committee sound skeptical about the fulfillment of 512. This probably has a lot to do with the fact that instead of merely offering platitudes about the value of creative works, authors present hard data showing how often those works are being pirated and by whom. From this evidence, it is very easy to see why no individual creator stands a chance against that tide, which explains why the internet industry would rather draw everyone’s attention elsewhere.

Photo by: fizkes

Maybe the Internet IS Just a Dumb Pipe

“Content is king” was the catch-phrase of the 1990s and the heady (headless really) days of the Dot Com bubble.  And although that stopped being a slogan with the resurgence of Web 2.0, it was still true.  Content was still king except the would-be tech giants figured out that they didn’t need to create content but instead just make someone else’s content available.  Whether these companies had any right to exploit said content did not matter since the telecom giants who preceded them had conveniently negotiated a liability shield (DMCA §512) for copyright infringement before anyone quite realized how a YouTube could become a massive infringement machine that prints money for its owners.

When rights holders complained that these platforms were infringers (or at least beneficiaries of infringement), the answer was always some variation on the themes …  It’s not us.  Its the users.  We don’t control what gets uploaded. We’re just a neutral platform.  And so on.  Thanks to that liability shield negotiated by Verizon, AT&T, et al in 1998, Google and the other major platforms got away with the circular logic that “the internet” is simultaneously “just a dumb pipe” and also a network of such inestimable value that no cyber-policy may be altered—other than, of course, by Google and the other major platforms.  They are at liberty to alter the internet all they want because they do so many nice things for us—and all for free!

In 2012, concurrent with the not-so-grassroots defeat of SOPA/PIPA, Google’s lobbying expenditures went from negligible to competing among the top five in the nation; and the major platforms also formed the Internet Association to advocate policy in its interests.  That’s business as usual, and industries have every right to form such organizations, but this new coalition of tech giants was also contemporaneous with the anti-SOPA narrative in which the Motion Picture Association of America a) had allegedly tried to force legislation that would “break the internet”; and b) represented “old thinking” about content, copyright, and digital-age piracy. 

Let us now leap over the past seven years to the present—a time when the major internet platforms—most demonstrably Facebook—have revealed many of the darker consequences of their hands-off, disrupt-culture approach to platform moderation.  Amid this still-developing narrative, came the big news last month—though it should not have been the least bit surprising—that Netflix would leave the Internet Association and join the MPAA.  Because content is still king.

As described in my post of October 2015, Netflix is not an internet company; it’s a motion picture studio that happens to distribute via the internet.  New opportunities to measure viewer data notwithstanding, the simple reality is that the more “tech” companies invest in original programming, the more they will naturally find common ground with the policy interests of the MPAA et al. In that regard, a January article in Variety speculates that Amazon—with its slate of multi-award-winning shows—could be next to join the big studios.  Either way, the swing of this pendulum does suggest a new premise:  that perhaps the internet industry does not have (to use the technical term) jack-shit to teach content creators about copyright or piracy—and let’s not even talk about whatever the hell the “economics of abundance” means.

In fact, if one looks at YouTube’s Copyright Match response to the realization that their own creators do not like having their videos infringed by other YouTubers, maybe the “new” industry actually has something to learn from the “old” one about protecting creative works.  Meanwhile, as the traditional media/entertainment companies continue to migrate toward streaming and other contemporary models of distribution, they will surely learn much from a pioneer like Netflix.  But this will not change the raw investments of time, talent, labor, and money required to produce new works, and so it will not diminish any producers’ interest in protecting and enforcing copyrights.  

In this context, I am reminded of a story from January of last year in which songwriter/performer Blake Morgan found himself having to explain to Spotify executives that music was in fact the product they were selling.  One might think this is not a very high mental hurdle to clear, but Morgan describes that some in the meeting became rather heated in their defense that, no, Spotify was the product.  Because, of course, we launch that app just to look at the interface?

Time will tell if there will be any significant future defections from the Internet Association, though its members are not without vested interest in a range of policy areas.  But to the extent that union was formed in response to proposals like SOPA and to advocate against copyright enforcement, the departure of members who are now major rights holders serves as a long-overdue reminder about the difference between creative works and the technological means to access or distribute those works.  As the platform owners love to repeat in their own defense against liability, the internet doesn’t produce anything; it’s just a dumb pipe.