Far Beyond Filtering: Is The GOP Looking To Shut Down Porn Producers?

from the if-we're-going-to-have-any-morality-around-here,-we've-got-to-ditch-a-fe dept

We recently discussed the GOP's decision to sabotage its new "internet freedom" platform by including some unfortunate anti-porn provisions. Romney declared that, if elected president, every new computer would have an anti-porn filter installed. At the very least, this filtering would be redundant. As Mike pointed out, porn filters already exist and are easily available. If this is being done "for the children," perhaps the application of a porn filter should be left to the parents, rather than made mandatory via legislation.

That handles the user end of the experience. I would imagine that additional filtering might be suggested (or required) at the ISP level, aligning it with efforts in the UK. Whether or not an opt-in Known Perverts option will be available is still open to speculation. Most likely, once the rhetoric clears, it will simply be a matter of computer manufacturers offering filtering software right out of the box. This will fulfill the requirement without needing much more than some cursory compliance checks, and everyone involved will feel proud to have "done something" to keep porn out of kids' eyeballs. This will also be a boon for developers of filtering software, who will be jockeying for lucrative OEM contracts.

Romney hasn't really specified what he means by "computer," meaning that the spread of pre-installed filterware could envelop any device that connects with the internet, including tablets and smartphones. There is also no information on how "mandatory" these filters will be or what issues computer/device manufacturers will face should they fail to comply.

It's a vague concept that hardly anyone will argue against for fear of appearing to be siding with pornographers, or worse, child pornographers (thanks to always-handy conflation). Perhaps more unsettling than the feel-good, do-nothing "filtering" promise is another sentence lurking in the platform: "Current laws on all forms of pornography and obscenity need to be vigorously enforced." Eugene Volokh tackles the troubling implications of this phrase, putting together a set of tactics the government could implement in an effort to enforce standing obscenity laws.

First off, Volokh tries to determine the endgame? Is the intent to shut down as many US pornographers as possible? If so, supply from other sources will fill the demand:

[E]ven if every single U.S. producer is shut down, wouldn't foreign sites happily take up the slack? It's not like Americans have some great irreproducible national skills in smut-making, or like it takes a $100 million Hollywood budget to make a porn movie. Foreign porn will doubtless be quite an adequate substitute for the U.S. market. Plus the foreign distributors might even be able to make and distribute copies of the existing U.S.-produced stock — I doubt that the imprisoned American copyright owners will be suing them for infringement (unless the U.S. government seizes the copyrights, becomes the world's #1 pornography owner, starts trying to enforce the copyrights against overseas distributors, and gets foreign courts to honor those copyrights, which is far from certain and likely far from cheap).

This is an interesting conjecture. Removing the producers from the equation opens up the possibility that foreign producers would simply do the math and up their profits by reselling product they didn't create. Having the US government eliminate their competition is an added bonus. It seems unlikely that the government would act on the behalf of porn companies it's legislated or prosecuted out of existence. But would it tolerate abuse of American IP, no matter how abhorrent the subject? Probably. The porn industry isn't known for its lobbying efforts.

Moving on, Volokh speculates on three possible outcomes of enforcing existing laws on pornography and obscenity.

The U.S. spends who knows how many prosecutorial and technical resources going after U.S. pornographers. A bunch of them get imprisoned. U.S. consumers keep using the same amount of porn as before.

This tactic sounds like it would work as well as current IP enforcement measures. As it stands now, ICE is better known for its RIAA/MPAA lapdog status than for producing credible results. Sites get taken down, sat on and returned to their owners with no charges brought or apologies offered. Drawing a bead on targets like porn producers makes for some rah-rah press but will have little effect on the amount of porn available. 

As ineffective as these actions would be, the greater issue is that increased enforcement will do absolutely nothing to change people's perception of porn:

Nor do I think that the crackdown will somehow subtly affect consumers’ attitudes about the morality of porn — it seems highly unlikely that potential porn consumers will decide to stop getting it because they hear that some porn producers are being prosecuted.

This falls right in line with the perception of file sharing as a "moral" issue. It's all well and good to claim the high road in the fight against infringement, but if the general public doesn't share your beliefs then the battle is not winnable. Legislation and prosecution aren't going to change anyone's mindset. It just makes the punishment seem ridiculous or unduly harsh.

There are more echoes of the ongoing anti-piracy efforts. Volokh's next scenario involves going after foreign producers:

The government gets understandably outraged by the “foreign smut loophole.” “Given all the millions that we’ve invested in going after the domestic porn industry, how can we tolerate all our work being undone by foreign filth-peddlers?,” pornography prosecutors and their political allies would ask. So they unveil the solution, in fact pretty much the only solution that will work: Nationwide filtering.

It’s true: Going after cyberporn isn’t really that tough — if you require every service provider in the nation to block access to all sites that are on a constantly updated government-run “Forbidden Off-Shore Site” list. Of course, there couldn’t be any trials applying community standards and the like before a site is added to the list; that would take far too long. The government would have to be able to just order a site instantly blocked, without any hearing with an opportunity for the other side to respond, since even a quick response would take up too much time, and would let the porn sites just move from location to location every several weeks.

This goes far beyond simply requiring pre-installed filtering software. Instituting any sort of a blacklist combines the futility of whack-a-mole with the "we don't have time to follow procedures/respect rights" urgency of "doing something" to make the internet a "safer" place. As these actions prove futile, enforcement will move to cutting off the money supply, targeting credit card transactions, pressuring foreign governments to play by the US''s rules, etc.

The third option, and probably the least palatable to politicians? Going after end users:

Finally, the government can go after the users: Set up “honeypot” sites (seriously, that would be the technically correct name for them) that would look like normal offshore pornography sites. Draw people in to buy the stuff. Figure out who the buyers are. To do that, you'd also have to ban any anonymizer Web sites that might be used to hide such transactions, by setting up some sort of mandatory filtering such as what I described in option (2).

Then arrest the pornography downloaders and prosecute them for receiving obscene material over the Internet, in violation of 18 U.S.C. § 1462; see, e.g.,United States v. Whorley (4th Cir. 2008) (holding that such enforcement is constitutional, and quite plausibly so holding, given the United States v. Orito Supreme Court case).

Politicians may state that they think porn should be outlawed or controlled, and some are even willing to trample on some rights to put that in motion. But it's hard for most to jump from taking down the supply side to attacking the demand. If your aim is to make the internet "safer," it's fairly easy to see that removing users has no effect on "safety." But while this logic leap is hard, it is by no means impossible. The War on Drugs has locked up thousands of users by making possession a crime. "Possession with the intent to distribute" is simply a matter of going above an arbitrary quantity. Possession laws assume the only reason a person would be carrying [x] amount of drugs is because they're selling to others. Would a person with more than [x] megabytes of porn on their hard drive be considered a distributor, thus opening up the possibility of additional charges? I don't see why not, given the attitude surrounding the issues.

There's plenty of food for thought in Volokh's post, especially considering the faint echoes of SOPA/PIPA present in the discussion of enforcing morality. Both parties claim to be working towards a more open internet, but seem willing to scuttle that openness in reaction to hot-button issues or overly-friendly nudges from lobbyists. Ultimately, the question isn't about whether or not porn is "bad" for citizens, but rather, how can these laws possibly be enforced without descending quickly into "draconian measures"?

How can the government's policy possibly achieve its stated goals, without creating an unprecedentedly intrusive censorship machinery, one that's far, far beyond what any mainstream political figures are talking about right now?

The answer is: it can't. But these concerns aren't being considered, at least not during an election run. Post-election, if anyone gets around to fighting this unwinnable battle, the concerns likely won't be considered at that point, either. It's usually not until the public gets noisy enough to jeopardize politicians' careers that any sort of consideration is given to the rights of the people affected. Even more disturbing is the fact that pursuing this end effects both sides of the creative effort: the producers and the consumers. Considering the resemblance these actions have to past overreaching legislative efforts crafted to "protect" certain industries, it's rather disconcerting to see the possibility of these same actions being used to destroy a creative industry simply because certain people don't care for the product.

Filed Under: gop, mitt romney, platform, porn

Spotify Finally Becomes A True Platform: Now Let's See Some Innovation

from the build-in-cwf+rtb dept

Nearly two years ago, Spotify first hinted at its desire to set itself up as a platform that others could build things on top of. And it's finally become a reality. This could actually be quite cool. Just a couple months ago, we were pointing out that just "putting radio on the internet" isn't that cool, but that we need killer apps for music. Spotify as a platform will hopefully make it easier for those killer apps to happen. The current crop of apps that they launched with are pretty ordinary, but I'm excited to think what comes next. Things I'd love to see: Turntable.fm (still the most addictive and coolest "social music" service out there) integrated directly into Spotify) as well as integration with things like TopSpin or Bandcamp. Right now there are options to do ticketsales, but what if you could build in ways to let people buy merch... or, better yet, connect with the artist directly via Spotify? And those are the obvious ones. The real killer app is probably going to take us all entirely by surprise. This is, by the way, yet another reason that short-sighted artists and labels are going to regret dropping out of Spotify. You have to be where the killer apps are or you're going to get left behind.

Filed Under: api, apps, innovation, music, platform
Companies: spotify

Does Google Have What It Takes To Be A Platform, Rather Than A Product, Company?

from the the-challenge-is-(still)-on dept

Nearly seven years ago, I wrote about the idea that there was a "battle to own the internet," and that if Google really wanted to succeed, it had to move away from just being a product company to being a true platform company that had a much more open setup, which did much more to encourage developers to build on top of it. Over the years, occasionally I've repeated that point. And while Google has done a few things at the margin, it still has always seemed to resist becoming a true platform. There are, certainly, some folks inside Google who get this, and I seem to hear from a bunch of them any time I bring this up. But the company has a history of having trouble really opening up to outside developers.

So it's really interesting to see this "internal" note from Google employee Steve Yegge, that he accidentally posted publicly via Google+. It's a very detailed and honest criticism of the company's attitude on certain things, but not done to slam Google, but rather to push Google to change. It's getting tons of attention, and Yegge removed the post, but has allowed others to keep up a reposted version. He's also pointed out that Google PR was careful not to pressure him to take down the post, noting that employees are free to express their opinions.

Some have been reading it as an insider's "attack" on Google, but I don't see that at all. It seems like a call to action from someone who thinks the company is missing the boat on being a platform. Yegge spends a lot of time talking (very openly) about his prior experience working at Amazon, and about how Jeff Bezos got the "we need to be a platform" religion big time nearly a decade ago, and effectively forced the entire company to focus on that as job number one. While Yegge criticizes many problems with Amazon, he does recognize that such a vision has put Amazon in a good position (along with others who have clearly embraced being "the" platform: Facebook, Apple and, almost by accident, Microsoft).

The key part of the post, which is what many people are focusing on, is where Yegge criticizes Google+, and how it wasn't designed as a platform, whereas its main direct competitor, Facebook, has clearly embraced being a platform in a very meaningful way.

Google+ is a prime example of our complete failure to understand platforms from the very highest levels of executive leadership (hi Larry, Sergey, Eric, Vic, howdy howdy) down to the very lowest leaf workers (hey yo). We all don't get it. The Golden Rule of platforms is that you Eat Your Own Dogfood. The Google+ platform is a pathetic afterthought. We had no API at all at launch, and last I checked, we had one measly API call. One of the team members marched in and told me about it when they launched, and I asked: "So is it the Stalker API?" She got all glum and said "Yeah." I mean, I was joking, but no... the only API call we offer is to get someone's stream. So I guess the joke was on me.

Microsoft has known about the Dogfood rule for at least twenty years. It's been part of their culture for a whole generation now. You don't eat People Food and give your developers Dog Food. Doing that is simply robbing your long-term platform value for short-term successes. Platforms are all about long-term thinking.

Google+ is a knee-jerk reaction, a study in short-term thinking, predicated on the incorrect notion that Facebook is successful because they built a great product. But that's not why they are successful. Facebook is successful because they built an entire constellation of products by allowing other people to do the work. So Facebook is different for everyone. Some people spend all their time on Mafia Wars. Some spend all their time on Farmville. There are hundreds or maybe thousands of different high-quality time sinks available, so there's something there for everyone.

Our Google+ team took a look at the aftermarket and said: "Gosh, it looks like we need some games. Let's go contract someone to, um, write some games for us." Do you begin to see how incredibly wrong that thinking is now? The problem is that we are trying to predict what people want and deliver it for them.

This part rings incredibly true. I know that when Google+ launched, I liked it as a program, but asked people about APIs, because it needed to better integrate into my workflow -- and was told that that would be coming "sometime later." And while I still mess around with Goolge+, it's largely become an afterthought to me, because it just lives off in its own separate world, rather than integrating well. There are still features I like, but until developers have a chance to dive in and make it useful... it just doesn't feel like a necessity.

But there's a bigger lesson in this, beyond Google's continued platform-itis. And it goes back to the issue of cargo cult copying -- a topic I've discussed a number of times. People seem to think it's easy for companies (especially big companies) to "copy" products of their competitors. In fact, with Google, many people think it's so easy that there are antitrust investigations going on. But Google+ and the points that Yegge raise remind us, yet again, that while copying the basic "features" of a product may be possible, really recreating what makes it tick and what makes it successful is difficult.

It's easy to copy the superficial. It's difficult to copy the soul.

With Google+, the company built a really nice copy (with some clear improvements) of Facebook, the product -- which is the superficial, public-facing part. But it completely missed the boat on Facebook, the platform -- which is the real soul of what makes Facebook such a powerhouse. Google certainly can get there. And, in the back of my mind, I'd always assumed that was exactly the path they were on. But remembering that post from 2004, and the lack of any sustained, involved effort within and across Google to be a platform, combined with this post from Yegge, again makes me wonder if Google just doesn't recognize the importance of being a platform.

I've argued in the past that one big achilles heel for Google is its awful reputation when it comes to customer service, but it's lack of deeply ingrained platform-focused thinking may represent a much bigger threat.

Filed Under: apis, platform, product, services, social networking, steve yegge
Companies: amazon, apple, facebook, google

Live Nation Working To Turn Website Into More Of A Platform

from the this-could-be-interesting dept

Live Nation gets a bit of a bad reputation for some of the way it handles large stadium shows, but of the "big" music industry players, it's actually one of the more interesting and better positioned companies out there, because it really has aligned itself to benefit from the sale of scarcities, rather than the sale of music itself. It does have some legacy issues, such as huge commitments to some large acts and a distracting merger fight with Ticketmaster, but the company is still worth watching. It's been trying to do more and more with its website, to make it something of a destination/e-commerce play, and its latest move is to make it more of a platform. Both artists and fans will be able to upload concert footage, as well as various community features (wikis, reviews, Twitter streams, fan Q&As and more). It increasingly seems like Live Nation is trying to enable a platform where fans and artists can connect, and on which fans can buy (mainly concert tickets, but other things as well). It's a smart move, but I wonder whether or not Live Nation ends up competing with a band's own web presence. What could be cool is if Live Nation also makes it so an artist can integrate many of these features into their own site as well. In the meantime, though, we're once again seeing why now is a great time to be a musician. There are so many different services that help enable artists to both connect with fans and set up business models.

Filed Under: concerts, music, platform
Companies: live nation

Why Is It So Difficult To Understand The Difference Between A Platform And A User?

from the head-scratcher dept

In the US, thanks to safe harbor rules in the DMCA and the CDA, courts will often toss out misdirected lawsuits that go after a service provider for the actions of a user. To be honest, I've always questioned why we need such safe harbors in the first place, since it should just be basic common sense that a service provider shouldn't be liable for the actions of a user. But, of course, common sense just isn't that common. This can be seen, first, in all the lawsuits that require incantations of the safe harbors to get them tossed out, but even worse, in foreign countries that have no such safe harbor laws. Take for example, a case in India, where Google India is being blamed for content written by bloggers on Blogger. First, Blogger is run by Google, not Google India, so the lawsuit is doubly misdirected -- but, more importantly, Google itself cannot be responsible for what someone writes using its tool. That's like suggesting that Bic is responsible for what you write with its pens. The case involves a guy who was upset about what some bloggers wrote about him -- so of course, he had to sue Google. What's amazing is that the judge seems to have initially bought this as reasonable. It barred Google from hosting any blog that "defamed" this guy. Google has responded by trying to explain the basics of the internet to the judge and how it's impossible for Google to figure out if someone is defaming someone else using its software.

Filed Under: bloggers, india, libel, platform, safe harbors, user
Companies: google

Forget Suing Google, Now It's Craigslist That's A Target For Misplaced Lawsuit

from the no-surprise-really dept

It's been quite common for companies to sue Google when a competitor puts up an ad that references their own trademarks. This is misguided in any number of ways: first, as long as the ad itself is not confusing such that the reader (or a moron in a hurry reader) would think that the ad is from the original company rather than the competitor, there's not likely to be a trademark violation. More importantly, even if there is a trademark violation, it should not be Google's liability, since they're simply the service provider. The liability (if there is any) would be on whoever created the ad. Mostly, the courts have gotten this right -- though, sometimes they've gotten confused. Either way, those lawsuits keep getting filed.

And now, it appears, they're spreading. Dave Barnes alerts us to the news that a similar lawsuit has been filed against Craigslist. The lawsuit was originally filed in a Texas state court, but has been transferred to a federal court -- but not before the state court banned Craigslist from posting any more ads with those trademarked words. Considering that Craigslist does not pre-screen posts to its site, it's not at all clear how that's even possible. And, considering that trademarks only cover use in commerce in a specific context, it would be way too onerous to insist that Craigslist could not allow the phrases "Call First," "First Call Properties," or "Call Us First," in any context whatsoever.

Hopefully, the federal court is quick to dismiss Craigslist from the suit. Unfortunately, since trademark claims don't have a section 230 or DMCA safe harbor, it may be a little more involved than some other cases. But common sense, once again, dictates that Craigslist should not be the liable party here and should not be responsible for policing the text of posts. To make the claim even more ridiculous, since Craigslist doesn't charge for the ads in question, it's difficult to see how Craigslist could be found to have been using these words "in commerce." The lawsuit also alleges libel against Craigslist -- which should get thrown out quite quickly under section 230. It's too bad that the trademark claim might be a bit more involved.

Filed Under: advertisements, platform, service provider, trademark, user
Companies: craigslist, google

Two Companies That Should Know Better Shut Down Helpful 3rd Party Apps

from the bad-news dept

Having just pointed out how multiple train operators are using intellectual property laws to shut down helpful third party apps, we're seeing a number of stories about other companies doing something similar. First up is Last.fm, which has apparently started blocked a bunch of third party apps that had been using undocumented calls to stream content from Last.fm. Last.fm (now owned by CBS) was in a bit of a quandary, because its licenses with the major record labels (there they go again, blocking innovation) forbid streaming except in specific circumstances -- so these third party apps "broke" the agreement. But... that's not quite true, because the agreements are between Last.fm and the labels, not the third parties. Last.fm has now specific requirement to block others from creating apps. So, yes, Last.fm has every right to do this, and I'm sure the labels were demanding it do this, but it still doesn't make it a very smart move. Those third party apps were making Last.fm more valuable. Blocking them hurts the overall value and pushes people to go in search of other services that are more consumer friendly.

This move also comes right after Last.fm's recent decision to charge for streaming outside of the US, Germany or the UK. This also has folks up in arms -- and is driving away users in droves to other solutions. Last.fm has plenty of competitors out there, and working hard to make its own service less usable and less reasonable isn't going to help keep users around.

Meanwhile, a bunch of folks have sent in the story of how DVD rental kiosk operator Redbox has pressured a third party to takedown its Redbox iPhone app. The app was apparently pretty cool, making use of the phone's GPS to tell you where the nearest kiosk is, and letting you reserve the movie you want. There is some speculation that Redbox is upset that the app also pulls a list of promotional codes, allowing some people to rent movies for free -- but that's a misguided concern. If that's the real issue, then they should just change how their promotional codes work because (of course) the codes are still available for anyone to search and use online. Shutting down the iPhone app doesn't fix that at all.

Still, it seems that both companies should know better. Having third parties build apps that make your services more useful is a sign of success, and should be encouraged, not threatened and shut down. We live in an age where too many people focus on using intellectual property as a club to block any use -- even when those uses are helpful in making your core product even more valuable.

Filed Under: 3rd party apps, intellectual property, platform
Companies: cbs, last.fm, redbox

The Guardian Follows The NY Times In Making News A Platform

from the good-job dept

A bunch of folks have been sending in the wonderful news that the Guardian, in the UK, has opened up an API and is sharing data in such a way that others can build programs on top of the news. This is fantastic -- and follows on a similar move last month by the NY Times. It appears that both the NY Times and the Guardian really are pushing the boundaries of recognizing that being an online newspaper these days needs to be about a lot more than delivering the news.

Perhaps even more interesting (though, getting much less attention) is the companion bit of news from some editors at the Guardian -- who are pointing out that they hope and pray each day that the NY Times gives into temptation and starts trying to charge for news... because it will create a huge opening for the Guardian to create a much larger online audience. This is what plenty of people have been pointing out for years: if clueless newspaper execs decide to start charging for news, it just opens the door wide for smarter news organizations to stay free and accumulate a much larger audience.

Filed Under: api, news, newspapers, platform
Companies: ny times, the guardian

NY Times Turning News Into A Platform

from the smart dept

For years, we've been big fans of the concept of having newspapers start becoming platforms, rather than monolithic "news delivering" services. Over the past year or so, a group of digitally savvy folks at the NY Times have shown one way that can work. Their latest move? To turn the NY Times news articles into a true platform. They've released an API for news, allowing others to actually build useful tools on top of the NY Times' news articles. Contrast that to, say, GateHouse Media, which recently sued the NY Times for trying to build useful tools on top of GateHouse's content.

Of course, just because there are some folks on the digital side who "get it" at the NY Times, it doesn't mean management has quite figured things out yet. At the same time as releasing this API, the paper's Executive Editor, Bill Keller is talking about trying to lock up their content and charge people for it, again. Yes, the newspaper needs new and innovative business models, but by now it should know that trying to charge for such content simply isn't a sustainable model. There's too much competition out there (which the NY Times discovered already when it tried and failed to charge for content a few years back). There are things that the paper can charge for -- but basic online content isn't one that will be successful.

Filed Under: api, news, platform
Companies: ny times

If Facebook's Platform Is A Strategic Mistake, It's In Facing The Wrong Direction

from the not-open-enough dept

VentureBeat is running an opinion piece suggesting that Facebook's platform strategy is a strategic mistake which got me thinking. I disagree with the author of that piece, David Gal, who claims that the platform strategy is a mistake because it "squanders" rather than helps the core asset of Facebook, which is the community of people. That's difficult to believe, as the platform itself is what's created numerous applications within Facebook that have made the network itself more valuable to those members because it actually gives them something to do with all of their friends, rather than just connect to them. So it's difficult to see how Gal reaches his conclusion. His suggestion that there are just too many applications being developed doesn't really matter, as it's the top applications that are the ones that people find useful, and which they use to add value to the overall network itself.

However, the article did get me thinking about whether or not Facebook has made a strategic mistake with its platform strategy. When the Facebook platform strategy was first announced, it made a lot of sense. We've been waiting and waiting and waiting for someone to build out a true "web platform" (and remain amazed that Google has repeatedly ignored the opportunity). However, while the Facebook platform strategy may have made sense initially, it's way too inwardly focused. That is, it's been entirely focused on having people build applications within Facebook to get access to its users. What would have been a lot more interesting and a lot more powerful is the ability to build applications for outside of Facebook that would leverage the power of the people inside Facebook. While I'm sure the short-term view is that Facebook needs to keep people locked in, the long-term benefit needs to be making something that's really useful -- and so far, it's not clear the Facebook Platform has really reached that stage.

As such, perhaps it's not too surprising that many of the more successful Facebook apps to date have really just been focused on games and music, rather than anything all that productive. Turning the community inside out, so that it can take part in activities outside of just the Facebook arena could be a lot more interesting. Right now, Facebook's Platform seems designed to keep people in Facebook so that advertisers get value. But the real opportunity is in using the people in the community to do something of value and to provide value back to those users as well. Hopefully, that will be the next stage of growth that we see out of the Facebook platform, or expect to see people start to drift elsewhere.

Filed Under: business models, platform, social networks, strategy
Companies: facebook