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.
[Editor Charlie sez: From the “Stop Me Before I Infringe Again” Dept….]
Turns out that Google Drive is a whole lot less buttoned up than you may have thought.
The file-sharing service typically associated with spreadsheets and office life has a dirty little secret, and it’s one that our Mountain View overlords may not be so stoked on. Namely, the service is a haven for illegal file-sharing.
The offending goods reportedly include both your standard video files as well as a unique twist on the file sharing MO: Instead of uploading entire movies or shows to Drive itself, people are dropping in scores of unlisted YouTube links.
Essentially, the idea is that unlisted links are less likely to be spotted by automated systems crawling for this sort of thing and are therefore less likely to be pulled. Putting a collection of those links in one Drive and sharing it over social media is like passing around a secret phonebook containing the listings for all your favorite pirated content.
[In response to Lyor Cohen’s blog post, ‘Five observations from my time at YouTube’]
I applaud and second Cary Sherman’s “Five Stubborn Truths…” response as well as Irving Azoff and David Israelite’s later comments.
Here is an independent label perspective.
Many of us hope that you will be able to change the culture at YouTube to become more artist friendly and transparent. We understand that it takes time to shift corporate culture especially one as established as Google’s. Unfortunately, there are some entrenched alternative facts that are repeatedly regurgitated by YouTube and need to be corrected.
A little over 20 years ago, Grateful Dead lyricist John Perry Barlow penned a manifesto that served as the basic blueprint for Silicon Valley cyber-libertarian ideology for two decades. Premised on the notion that the Internet (capitalized here since Barlow definitely treated it as a space rather than as a tool for communication), freed from government interference and the application of laws, would produce a more perfect society in which disputes would be resolved through dialogue rather than force or mandate, he famously wrote in his 1996 Declaration of Independence of Cyberspace….While it may have been forgivable in 1996 to be unable to accurately foresee the role of the internet, it is unforgivable in 2017 to pretend that this is an accurate reflection of the world we inhabit…An internet of Backpage, of ISIS recruitment, of cyber-bullying, of phishing, of ransomware and revenge porn, of cyber-espionage, of trafficking in counterfeit and pirate content. Achieving an internet that captures its potential to enhance social, cultural and economic well-being requires more than self-governance, and is predicated on the technology neutral application of laws to internet-based conduct.
Fortunately, governments, policy makers and many non-governmental organizations are increasingly aware that it is long past time to jettison the baggage of Barlow’s cyber-libertarianism. In furtherance of this understanding, governments around the world have taken action to ensure the application of law to online behavior, all of which brings us around to the [now buried] headline—the recent decision of the Canadian Supreme Court in Google v. Equustek.
Google, channeling Barlow’s “we are everywhere and nowhere,” challenged the right of Canadian courts to issue an injunction that had effect in jurisdictions other than Canada. The Canadian Supreme Court quickly dispelled this, holding that: “Where it is necessary to ensure the injunction’s effectiveness, a court can grant an injunction enjoining conduct anywhere in the world. The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates—globally.” In four short sentences, the Supreme Court of Canada turned Barlow’s “absence of borders” into a mandate for taking technology-neutral action in defense of its territorial sovereignty.
According to MusicAlly, a Member of the European Parliament from Germany has called out Google’s non-display uses of music that are pure profit for Google. Christian Ehler has his eye on the right ball:
“The American platforms have been very successful as it’s a liar’s poker that suggested an alliance between the consumer and their commercial interests. We have heard the notion that it is free and for consumers. This is a pretension as [YouTube is] not for free. [YouTube] gets access to you and you are bombarded with advertisements. We are living now in the time of the second level of revenues – this is the data the consumers are giving to these platforms […] Consumer data becomes more and more important and it’s not well understood that this is not for free […] We are selling our future. Creativity is the USP of Europe. They [the digital companies] accumulate money. Why is Netflix producing TV series? Why is YouTube creating YouTube stars? They do understand that their business is content, not distribution […] We are simply selling our economic future if we are going to lose this battle.”
I have been banging the table for years about Google’s non-display uses of music and the fans that we drive to their various platforms so MEP Ehler’s view is very welcome. “Non-display uses” include data scraping but could mean virtually anything because Google cannot be trusted to disclose what they are really doing with any of their products because they have a long history of not telling the truth about their business practices.
Google’s business practices raises several important questions for artists that no one is asking. The first question is do you want your music and your fans to be used in this way in the first place?
And since this is all a byproduct of what Mr. Ehler correctly describes being “bombarded with advertisements”, it is important to understand that even if you use YouTube’s tools to block YouTube from selling advertising against your work, Google’s exploitation against your fans doesn’t stop there.
Google routinely captures data from every conceivable contact with your fans and they do it surreptitiously, in relative secrecy in the background. How they do it is not easy to discover, but a significant number of their techniques and implementing technology was disclosed in a recent class action brought against Google by consumers for privacy violations of Gmail.
As Jeff Gould wrote in a highly recommended article “The Natural History of Gmail Data Mining” Google’s plan is to be able to scrape as much information as possible in return for the “free” use of Gmail:
The most striking thing about the early Gmail patents is how exhaustive they were in attempting to anticipate every conceivable attribute of an email message that might one day be exploited for ad targeting purposes. In many cases it would be years before Google was actually able to make these ideas operational in Gmail. The first version of ad serving in Gmail exploited only concepts directly extracted from message texts and did little or no user profiling — this method would only be put into practice much later. Some attributes have still not been implemented today and perhaps never will be. For example, as far as I know, Google does not reach into your PC’s file system to examine other files residing in the same directory as the file you attach to a Gmail message, even though the patents explicitly describe this possibility.
Are you willing to bet that Google doesn’t scrape the same kind of behavioral data about your fans on YouTube? And what is stopping Google from scraping the same data from children attracted to YouTube?
As Mr. Gould reports, the data mining is what makes the real money for Google:
When Gmail was finally released to the public in April 2004, its ad serving system used a sophisticated data mining algorithm known as PHIL, the subject of another Google patent filed by Georges Harik and a colleague. Already implemented the previous year in Google’s AdSense program that serves ads to web sites operated by third party publishers, PHIL stands for Probabilistic Hierarchical Inferential Learner. Despite the forbidding name, the basic idea is straightforward.
Words in documents such as emails [or lyrics] occur not randomly but in certain clusters. When allowed to crunch through a vast number of such documents, simple software algorithms can identify clusters that are more or less likely to occur and group them together as “concepts”. For example, PHIL can learn to distinguish the entirely different meanings of two concepts such as “ski resort” and “lender of last resort” without being tripped up by the fact that the term “resort” occurs in both. [But Google can’t distinguish between “Fragile” and “Fragile (Live)” for address unknown NOIs].
In AdSense, PHIL matched concepts derived from sets of keywords provided by advertisers with concepts extracted from the web pages where publishers wanted Google to place ads. The idea was that the better the match, the more likely a visitor to the publisher’s site would be to click on the ad, which was the revenue generating event for Google.
MEP Ehler has put his finger right on one of the implied issues in the value gap and it’s a value that isn’t usually measured in these discussions. The fact is the gap is so wide that it’s hard to know the value of the income transfer.
[Editor Charlie sez: So much for the “DMCA license”. This case reprises the highly successful case against Cox Communications won by BMG Rights relying on work done by Rightscorp. (Rightscorp is also helping songwriters by deciphering the mass “address unknown” filings of tens of millions of notices with the Copyright Office.)]
The RIAA is suing the San Marcos, Texas-based ISP Grande Communications for copyright infringement on behalf of its member companies, in a case that potentially could help define how Internet services must deal with consumers who repeatedly download music and other copyrighted works illegally.
The lawsuit, filed today in an Austin, Texas, district court, accuses Grande of “refusing to take meaningful action against repeat infringers” – users who repeatedly downloaded music illegally over BitTorrent networks.
Generally, ISPs operate under the Digital Millennium Copyright Act (DMCA), which gives them “safe harbor” from liability for copyright infringement committed by their users. (The users themselves can still be liable.) But a provision in the 1998 law requires digital services that operate under the safe harbor to implement “a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.”
Such “repeat infringer” policies have received more attention in the last decade, as copyright holders have tried to define the limits of the safe harbor. The issue has been especially important since December 2015, when a jury delivered a $25 million verdict in favor of BMG against Cox Communications, on the grounds that Cox didn’t qualify for safe harbor because its repeat infringer policy was inadequately implemented. Cox is appealing the verdict.
Using forks and knives to eat their bacon
Piggies, written by George Harrison
The well-known royalty deadbeat Vimeo is screwing artists over yet again. This time it’s pre-72 artists whose recordings the deadbeat wants to exploit on a “DMCA license” when the same courts deny justice to those very artists for the performance of their recordings by these very deadbeats.
Remember, the loophole these deadbeats exploit is the lack of federal copyright protection for sound recordings made prior to February 15, 1972, a totally arbitrary date. In 1998 the Congress passed the horrendous DMCA safe harbor that The Man 2.0 lobbied for to allow them to claim they have no knowledge that they are infringing–despite the fact that their entire business is built on stealing other people’s music.
At the same time, the Congress finished up the work it started in 1995 to establish a full-blown royalty system for the performance of sound recordings, paying hundreds of millions to recording artist who were previously ripped off. But–seizing an opportunity to save 30 pieces of silver, Sirius and Pandora fought to keep from paying pre-72 artists because The Turtles sued. While nobody ever thought Sirius cared about anything but money, this is why Pandora’s pro-artist bullshit is bullshit, leading to the musical question, how do you sleep at night?
So are you catching the theme here? The courts protect Big Tech in both cases. First, by allowing them safe harbor protection under the “DMCA license” according to the Supreme Court. Is it any accident that Lessig pal Justice Elena Kagan is on the court?
Second, by protecting them from paying on pre-72 recordings in New York where the Vimeo case was filed.
U.S. courts just want to crush the old guys and dead cats at every opportunity.
The Supreme Court won’t hear an appeal from record companies that want to pursue copyright infringement claims against music site Vimeo for hosting unauthorized recordings from the Beatles, Elvis Presley and other classic artists.
The justices on Monday left in place a federal appeals court ruling that said websites are protected from liability even for older music recorded before 1972.