Tag: Internet

Turkewitz: Disruption, Fear and Slippery Slopes: Baby Steps in Building a Better Internet

(republished by permission)

The biggest story of 2017? To my mind, there is no contest — the broad emergence of an awareness that the irresponsibility masquerading as Internet freedom represented a threat to global societies and to cherished aspects of our humanity, and that a course correction was badly needed. While recognition of the fact that rewarding lack of accountability would likely incentivize anti-social and illegal conduct took longer than it should have, such an awareness came to fruition throughout 2017. Whether motivated by concerns about sex trafficking or the prevalence of other internet-enabled crimes, fake news, foreign government interference in elections, monopoly or monopsony power, or the perceived political or cultural biases of platforms, the question at the end of 2017 wasn’t whether the current legal framework for platform responsibility should be amended, but how. It became clear that the twin pillars upholding the current lack of accountability in the internet ecosystem — Section 230 of the Communications Decency Act and Section 512 of the DMCA, each of which was adopted at the dawn of the commercial internet, would need to be reexamined and a new framework established. Ideas ranged from minor course corrections such as amending Section 230 to address issues related to sex trafficking (SESTA) and changes to the DMCA to require greater use of technical tools to prevent infringement going beyond mere takedown, to proposals to broadly regulate the operation of platforms given perceived monopoly power over the last mile (access to, and influence over, users). In short, there appeared to be universal acknowledgement that the status quo wasn’t working, and some — as yet unspecified — change was needed.

But apparently, if not unsurprisingly, this acknowledgement that the status quo needs to be disrupted isn’t quite shared by everyone. In an end of the year post by EFF’s Jeremy Malcom entitled “Time to Rethink Copyright Safe Harbors? 2017 in Review,” Malcolm writes: “They [safe harbors such as the provisions of Section 512 of the DMCA] are as vital to the Internet today as they have ever been.” His argument is summed up neatly here: “Without that legal protection, it would be impossible for such platforms to operate as they do today.” Well, yeah. That’s the very point of effecting change — to modify how platforms operate. Malcom apparently looks at the internet and sees the flowering of culture and the emancipation of humanity. I want his internet. And I am prepared to work to achieve it rather than pretending it is our reality, and without employing absurd reductionism as if we were holding a referendum on whether technological progress and the internet are good or bad things. The internet is a remarkable tool for expanding communications and access to information in a truly transformational manner. The question is: can we be better stewards, and how can we most fully achieve its potential for enhancing the welfare of societies. We should not let the perfect be the enemy of the good, but nor should we let the good stand in the way of the better.

It would also be nice, but alas probably a bridge too far, to engage in dialogue about solutions without fear-mongering and labeling. In order for Malcolm’s narrative to hold, he has to take the individual creator out of the equation and to pretend that somehow the cultural marketplace is of no concern to actual creators — only to the ominous dark media lords, the dreaded “Big Content.” The ones who brought you SOPA. You know who I am talking about. The Man. Aiming only to defend a failing and exploitative business model. Malcolm works hard to reinforce this false picture, repeatedly referring to “copyright industry lobbyists,” “industry representatives,” “Big Content,” and of course, EFF’s favorite…”monopoly rents.” And suggesting that these industry trolls working in secret to destroy the internet would have gone unnoticed but for EFF’s vigilance. All of which leads to his central lie:

“But Big Content isn’t satisfied with such laws, because they place responsibility on copyright holders to request the removal of infringing content, and because the availability of free, user-uploaded content supposedly depresses the value of mainstream, paid entertainment. The content industry thinks a filtered, regulated Internet that suppresses user-uploaded content will deliver them higher revenues, and they describe the absence of these imaginary monopoly rents as a “value gap.”

There is no part of this that reflects the world we actually inhabit.

1-Large media companies (whatever that means) are not alone in calling for reform of safe harbors. A quick review of comments and submissions in the EU and US will reveal a creative community unified in its support for reform: businesses and labor, major studios and indies, individual creators and trade associations. And our problem is not that safe harbors place responsibility on copyright owners to request removal, but rather that they fail to place corresponding obligations on platforms to take meaningful action when they know, or should know, of infringing materials. Existing safe harbors in the US, EU and elsewhere create incentives for platforms to avoid knowledge of infringement, and then only obligate platforms to take remedial action which fails to provide an actual remedy. We need to reset the incentives to breathe life into the legislative intent behind existing legislation to promote cooperation in addressing infringement and expanding the digital marketplace.

2-The notion that the creative community is worried about competition to “mainstream, paid entertainment” from free user-uploaded content is truly outrageous. The creative community has no issue with creators determining that they want to offer their works for free. The problem is when users decide to upload the works of others without the creator’s permission. And yes, forcing creators to directly compete against unauthorized versions of their own works is both prejudicial and fundamentally unfair. That doesn’t require a lot of imagination, just a basic sense of fairness and justice.

3-Malcom asserts that there are two alternatives: his free and open internet, or the copyright industries’ filtered, regulated internet that suppresses freedom of expression and delivers monopoly rents. Reductionism at its very worst. The status quo, or some Orwellian nightmare of control. But of course, this is pure fantasy. The core issues related to safe harbors are not about regulation, but rather address the development of a technology-neutral way to achieve the kind of responsibility we would expect in the offline environment. Not more, and not less. To eliminate incentives for recklessness and willful blindness. And yes, to change the status quo. That’s what gets Malcom — he clings to the world he knows, and lives on a slippery slope. But when we resist doing what’s right out of fear of some future unknown, then something is fundamentally wrong.

An article published just yesterday neatly captured our reality: “The DMCA and CDA protections enabled a few Silicon Valley giants to become sinfully rich, with a concentration of power not seen since the 1920s. The digital revolution could have succeeded without the ‘disruption’ and their disregard for copyright and content creators.”

I have a modest proposal for 2018: let’s abandon evangelical fervor in favor of policy-making grounded in the observable universe. Let’s acknowledge that lack of accountability will produce unaccountable actions. And let’s be prepared to challenge the status quo to produce the kind of outcomes that enhance societal welfare. A recent article in Ars Technica entitled “How do you change the most important law in Internet history? Carefully.” While the underlying notion that Section 230 is “the most important law in Internet history” represents, as Devlin Hartline has noted, a fetishization of Section 230, I nevertheless agree with the proposition that we must exercise care. But Ars, unlike EFF, doesn’t ask whether the present framework should be amended, only how.

Image by Aenota

Well, That Year Happened: Notes from Utopia

’Tis the season of glad tidings and Year-in-Review articles.  But those moods are decidedly incompatible. The crescendo of 2017 is more like a relentless cacophony of disaster scenes justifying the preponderance of the word apocalypse in so many social media comments.  It was indeed a hard contrast between the vibe of  “Winter Wonderland” and the image of a starving polar bear heralding an extinction caused by climate change that, if you check the EPA’s website, is no longer occurring.

I was also struck by the contrapuntal glimpses of Los Angelenos navigating a hellscape of un-containable wildfires, while in Northern California, members of Silicon Valley’s elite are lately gathering at an old hippie retreat called the Esalen Institute to chant and meditate some inner path back to their own humanity. Why?  Because, according to a recent article in the New York Times, they feel bad that their grand innovations and disruptions have not made the world a better place. And it’s keeping them up nights.

There is something just a tad Revelations-y in the mental montage juxtaposing horses on fire at one end of California and a conclave of guilt-ridden, insomniac techies sitting lotus position and muttering mantras at the other.  As my friend Tessa Lena suggests on her blog, these cyber wonks could just fast-forward to the realization that they were never messiahs in the first place—that their promise was always self-delusional.

Even Mr. Zuckerberg seems to be doing a bit of soul searching this year in light of incontrovertible evidence that his “people connecting” machine can so easily be manipulated to drive people apart and undermine democratic principles.  Sean Parker says he’s become a “conscientious objector” to social media, and former Facebook executive Chamath Palihapitiya says the platform is “ripping apart the social fabric” and that his own kids “aren’t allowed to use that shit.”

The counter-culture idealism of early Silicon Valley can be forgiven, as most idealism can, for its naiveté about the prospects of “better living through data.” (Without at least a little blind faith, ideas rarely produce anything at all.)  Less forgivable, though, is the fact that long after those nascent values had been corporatized (to borrow composer Zöe Keating’s word), the messianic rhetoric continued to assert that the internet is, on balance, a net positive for democratic principles. Until this year.

Unfortunately, we had to elect a Twitter troll to the highest office in the land, and usher in the post-truth era, for the press to grow weary of its infatuation with Big Tech and begin to write editorials on the theme that perhaps the internet has a few pitfalls as an instrument of democracy.  If you wonder how anyone can accept that a huckster like Donald Trump could presume to question the integrity of a public servant like Robert Mueller, I give you the democratization of information and culture brought to you by a mostly-liberal class of billionaires (no wonder some of them can’t sleep).

As stated many times, one reason I jumped into the copyright fight is that the counter-narrative on copyright is based on a classically naïve assumption among liberals that “knowledge” is a panacea.  If we boil down the arguments against copyright, they generally express variations on the theme that “knowledge and culture belongs to everyone—that authors’ rights are outdated and elitist in a digitally democratized world.” This sentiment was based on a mistaken assumption (one of many) that more diffusion of more content can only produce a freer, more democratic, and more enlightened society—especially now that the network has removed the barriers (the so-called gatekeepers) of distribution.

But this populist notion ignored several countervailing realities, not the least of which was that new authors of creative, informative, and cultural works were merely migrating to a new, truly monopolistic, brand of corporate gatekeeper (e.g. YouTube) without seeming to notice.  On the broader belief that the information revolution would yield a wiser, more moderated electorate (not to mention a “global village”), this utopian assumption overlooked the obvious fact that the barriers of distribution were lowered in all directions—that when “information” can be customized (or as a friend put it, when history becomes a choose-your-own-adventure story), society will naturally fracture into communities of competing realities rather than a democracy of competing ideas. Add to this the fundamentally dehumanizing nature of semi-anonymous, electronic interaction, where even decent people are prone to ad hominem, and viola—we get the incoherent and existentially precarious U.S. 2017 Edition.

But what now? Although the bloom is substantially faded from Silicon Valley’s rose, and the major platforms are having a harder time selling their “just a neutral platform” message, this does not mean anybody is at all clear as to what kind of policies might mitigate the problems that we’re now willing to admit exist.  In an article for The American Interest, Eileen Donahoe offers some thoughtful guidelines for at least defining terms and making clear distinctions about causes and effects.  For example, she writes …

“…even assuming the polarization effect of Facebook is substantial, the echo-chamber problem is distinctly different from the intentional manipulation of social media by foreign actors seeking to affect election outcomes. Delineating between inherent features and malign uses will help us define platform responsibilities and yield better solutions.”

I agree, though I’d amend that slightly because the evidence thus far presented about the “Russian hack” is less indicative that the goal was the election of Donald Trump so much as it was to sow discord among the American electorate. The intent, it seems, was to disrupt democracy itself by weaponizing free speech and turning us against one another.  And it has been a premise of this blog that social media was already fostering this toxic atmosphere long before we learned anything about meddling foreign entities.

What I suspect the Russian campaign truly reveals is that there is probably no set of policies, either by Congress or the platform owners, that can effectively protect us from our own worst instincts.  While it is certainly refreshing to at least hear Big Tech companies acknowledge some responsibility for a change, the ultimate responsibility for preserving our rather delicate brand of democracy still falls on us; and that probably means coming to terms with the ways in which these platforms are harmful to both reason and social interactions.

Yes, Facebook could take steps to recognize a foreign entity buying propaganda and weed this out up to a point—Senator Kennedy (R-LA) stated in the hearings that he was skeptical as to how much the company could truly control—but Facebook cannot stop Americans across the political spectrum from believing and disseminating absolute garbage—let alone acting on misinformation.

But the real challenge isn’t information quality itself.  Six years ago, what scared me most about about the bogus anti-SOPA campaign was the corresponding ebullience for “direct democracy,” the groundswell of populist sentiment that imagined the internet as the antidote to all the ills of government overreach and corporate oligarchy.  The illusion that direct, positive, and popular action via these platforms would overwhelm the worst excesses of government/corporate control became the meat of many self-congratulatory editorials and blogs. As asked at the start of this year, now that democracy is disrupted, how’s it looking so far?

Adding insult to this injury is the fact that the theater of direct democracy continues to rally people to the cause of the internet oligarchs themselves. This paradox is inherent to addressing any area of cyber-policy, and we see it repeated in the incoherent battle over Net Neutrality.  The problem is semantic. In a complex world reduced to bullet points, it’s almost impossible to identify, for instance, the specific vested interest of Google, whenever the general message is “Save the internet!” This has been the standard headline responding to every policy proposal from SOPA to SESTA to the TPP and Neutrality; and every time the bell is rung, people respond, “Yes! Please save the internet!” which is a naively generic vote to save the status quo of the internet. Thus, even people who are harmed by the current state of internet policy take action against their own interests.

Of course the internet is not synonymous with the business interests of Google or Facebook or Amazon or any other corporation. And the fact remains that the status quo of the internet writ large is, in many ways, not something worth saving. To the contrary, the prevailing body of internet policy, most of which was written before anyone could imagine the environment we have today, has fostered a wide range of unforeseen negative effects, the most dramatic of which are the now-manifest threats to democracy itself.

I neither know, nor indeed care, what the meditating minds at the Esalen Institute discover about their “Inner-Nets,” as one Googler-cum-guru puts it. If the leaders of these companies really want to make the world a better place, they might begin by taking their noses out of their navels, acknowledge the ways in which their technologies have made the world worse, and become responsible partners in mitigating measurable harm like human trafficking, IP infringement, harassment, ad hoc terrorism, and disinformation campaigns. But I wouldn’t hold my breath for the Big Tech pivot. In the meantime, maybe in the coming year, we might at least stop carrying Google’s water every time some meme demands that we “save the internet.”  Because, on balance, it’s a little hard to see quite how the internet is returning the favor by saving us from ourselves.

Netflix Is Not An Internet Business

With the release this month of Netflix’s first official feature film Beasts of No Nation, the rental-turned-streaming service continues to prove itself a fierce competitor in the filmed entertainment industry—not only as a producer of award-winning projects, but as the preeminent, game-changing distributor having a dramatic influence on both traditional distribution models and viewer habits. This is particularly true with works we would normally call television programming, but it should be no surprise to see Netflix, Amazon, and other streaming services jump into the production of feature-length motion pictures. Still, even as Netflix reshapes the producer/distributor landscape, it would be a mistake to call it an “Internet business.”  It’s not. It’s a filmed-entertainment company—one that has followed almost the exact same business model as most cable networks, which built revenues on syndication (very similar to rentals) until they had the resources to begin producing original programming. Hence AMC makes Mad Men.

Naturally, the most profound change in TV viewing effected by streaming technology is the ability to “binge watch,” which is itself a neologism with an unnecessarily negative connotation. Speaking as a guy who abandoned “by appointment” television more than 25 years ago, I have to say that I now do watch TV shows again because of the opportunity to view an episode or two in sporadic moments of free time, though I wouldn’t really describe this as “binging” per se.  It’s really just a more dynamic and more convenient version of time-shifting (first made possible by the VCR), hence it’s easy to see the business logic in releasing whole seasons on a single day rather than one episode per week.  In a subscription model using on-demand technology, time no longer matters to the distributor as a point of access in order to retain revenue from viewers, but this is really the only distinction between a Netflix and an HBO as producer/distributors. And assuming HBO replicates the same model in the near future, this will not make it suddenly an Internet business.

But what is an Internet business anyway?  It may seem obvious, but not if we pay attention to both the colloquial, and even some of the formal ways in which we talk about the Internet. For as long as I can remember, friends and colleagues have been referring to the Internet when it isn’t quite what we mean at all. And I am sure I have been guilty of this lapse in clarity more than once on this blog, though I do try to use the expression Internet industry when writing about behaviors, motives, or agendas of a specific group of major corporations as subjects distinct from the technology itself.

Consider the expression Don’t believe everything you read on the Internet, a cliché that predates our digital times, but one that seemed to take on a new connotation during the dot com days when those bubbly, revenue-free business ventures were grist for a justifiable mill of cynicism.  Of course, neither then nor today would it make sense to dispute the veracity of information that comes through any particular set of wires. If a 20-year news veteran writes a story, it certainly does not matter if her work is published in print, online, or both. In this sense, there is no the Internet, there is only the journalist, her integrity, and her talent.  But that doesn’t stop us, it seems, from occasionally thinking of the Internet as a subjective noun, which can entertain, produce, deliver, swindle, amuse, enlighten, or lie; rather than as something more akin to a prepositional phrase, which creates an association between the individual and one form or another of human enterprise, action, or even folly and predation.  Still, we often say in casual conversation, I got this off the Internet, Look it up on the Internet, or Buy it from the Internet, and so on, entirely dissociating the information, content, or product from the extraordinarily complex, capital and labor-intensive processes behind the ephemeral page.

We talk about connections and awareness in the digital age, but real awareness is often not a byproduct of the consumer-convenience and ad-driven design of Web 2.0. Consider the reductive nature just in the act of buying a smart phone online.  A single click represents mining five metals in at least four countries as well as eight rare earths found mostly in China; international trade agreements; human labor working in conditions of varying degrees of quality; global shipping protected by multiple state navies; and a legal framework of mind-boggling proportion. In the same way many schools and parents have in recent years found it worthwhile to teach children that food doesn’t come from the supermarket, it is perhaps even more necessary to teach them that absolutely nothing comes from the Internet.

With entertainment media, it clearly does not matter whether HBO’s True Blood transmits to a viewer’s TV via one type of signal while Netflix’s Orange is the New Black uses a different transmission technology. This has absolutely nothing to do with the viewer enjoying either program and even less to do with the process of producing these hit shows. And this is perhaps an oversimple, yet relevant, example as to why I think it’s about time we stop reporting the story of the copyright debate as one of Internet businesses vs legacy media producers, or Hollywood vs The Digital Age, or most especially as Creators vs Technology.  As with the smart phone example, copyright is just one component of a legal framework that enables the production of Orange is the New Black and, by the way, the Google search algorithm that makes it convenient to look up information about author Piper Kerman.

It should be abundantly clear that for all the shiny newness of the “Netflix effect” on the industry overall, none of these developments imply any clear mandate for substantive change with regard to a producer’s copyright interests in the works—or with their interest in mitigating the influence of illegal distribution networks (piracy). To the contrary, the fresh diversity of programming and flexibility of viewing options advanced by these new producer/distributors may be even more dependent upon protecting their distribution, derivative, and merchandising rights than with so-called traditional media business models.  Whether the cable plugging into your TV is coaxial or ethernet, the legal foundation that enables production of the shows and films you watch remains fundamentally unchanged—to say nothing of the fact that the technologies themselves are dependent on many of the same legal frameworks.

Nevertheless, the ideological battle rages on, attracting “Internet activists” toward a broad anti-copyright, anti-IP agenda, perpetuating the myth that there is a central conflict between technological or creative innovation and the purpose of protecting intellectual property. The rhetoric of these squabbles distracts from the more subtle—easily misunderstood—points of actual conflict among leading entities. Meanwhile, technological similarities among major players seem to cloud some very important distinctions in business strategies and practices.

Netflix built its business entirely within the regime of licensing existing works, providing a better rental service, staying ahead of consumer demand as high-quality streaming became technologically feasible, and then migrating into original programming.  That’s called being competitive and innovative. And with its production of excellent works in just the past few years, the company has grown its number of paying subscribers to nearly 60 million; it now has a market value just behind that of CBS; and it is rapidly expanding into multiple markets around the world.

The bottom line is that neither individual creators nor major media producers have any quarrel with technology, the Internet, or the future. To say otherwise is just silly. Filmed entertainment in particular is a medium driven from its inception by a robust cycle of technological innovation. Moreover, the major players in the changing market are simultaneously symbiotic and competitive.  Hence nothing about the IP interests of a Disney should be misrepresented as a generic rebuke every line of business in which Google has an interest, let alone as a rejection of technology in general.  It ain’t the tools, it’s how you use them.