We have been talking these past few weeks about a strange game of whac-a-mole currently being played between YouTube and a whole bunch of stream-ripping websites. While stream-ripping sites have been targeted by the music industry specifically for some time now, despite a wide range of non-infringing uses of such technology, it was only recently that YouTube decided to participate in all of this by blocking access to its platform for many of these sites. Built around claims of ToS violations, it's fairly clear that YouTube's actual goal in all of this is to appear to be attempting to bow to the music industry's wishes. Despite the blocks, many of these sites have managed to route around the blockade, thus the game of whac-a-mole.
But not all such sites have taken this stance. Onlinevideoconverter.com, which initially routed around the block, has since announced that it is voluntarily leaving the hide-and-seek game and will simply stop converting YouTube videos itself.
However, the team behind the site isn’t planning to keep up this fight. People who access the stream-ripper today will notice that YouTube downloads have stopped working again. A site representative informs TorrentFreak that this is intentional.
“In view of YouTube’s latest stance, we’ve decided to disable the conversion of all YouTube videos on our service,” OVC says.
The stream-ripping site notes that the decision was taken voluntarily and not after it was contacted directly by rightsholders or YouTube. OVC simply believes that it’s the best direction to take and it stresses that other downloading and conversion tools remain available.
While other sites are still keeping up with the game, the exit of OVC is significant, as it is certainly one of the most popular stream-ripping sites on the internet. This may, of course, have been part of YouTube's overall plan. While its initial strike wasn't particularly effective, perhaps it actually was if seen as something of a warning shot. Google and YouTube have a ton of legal and influential weight to throw around, after all, and taking this initial action was bound to be enough to spook some sites.
Which is a shame, actually. The fact remains that these sites have legitimate uses. I've used them in the past for publicly available lectures and educational material from technology manufacturers that have no reason to view an audio rip as problematic. And, again, what about the artists out there who actually embrace what the internet can offer and want their work made as widely available as possible?
They don't matter in this fight, apparently. And that's a reality the music industry, and apparently now YouTube, can't seem to recognize.
In news that will surprise no one, Customs and Border Protection -- like many other law enforcement agencies -- is shot through with bigots and sadists. ProPublica was sent screenshots from a closed Facebook group composed of Border Patrol agents. The "10-15 Group," named for the Border Patrol code for "aliens in custody," entertained itself by posting offensive memes and generally treating the people they interact with most as subhuman, at best.
Members of a secret Facebook group for current and former Border Patrol agents joked about the deaths of migrants, discussed throwing burritos at Latino members of Congress visiting a detention facility in Texas on Monday and posted a vulgar illustration depicting Rep. Alexandria Ocasio-Cortez engaged in oral sex with a detained migrant, according to screenshots of their postings.
In one exchange, group members responded with indifference and wisecracks to the post of a news story about a 16-year-old Guatemalan migrant who died in May while in custody at a Border Patrol station in Weslaco, Texas. One member posted a GIF of Elmo with the quote, “Oh well.” Another responded with an image and the words “If he dies, he dies.”
If there's anyone out there that still believes law enforcement agencies are filled with the best kind of people, I'm sorry you've had your illusions shattered so late in life. There's nothing about these jobs that draws the best people. Turnover is a constant problem so we're left with the kind of people that enjoy the thought of capturing and incarcerating other human beings. This closed group is just a digital manifestation of the ugliness lying below the surface of the CBP.
Customs and Border Protection officials have been aware for up to three years that a secret Facebook group for current and former Border Patrol agents was posting offensive messages — far longer than previously reported.
Border Patrol leadership knew about photos posted to the group as far back as 2016, when agents reported them, according to a current Homeland Security official.
According to this Politico report, not a single agent was ever punished or reprimanded for their comments and posts in this closed group. Sure, they're being denounced now by top Homeland Security officials, but it's years too late. CBP supervisors had an opportunity to pass this up the ladder three years ago but did nothing. Springing into action when there are no options left is no one's idea of heroic. There's no excusing the CBP's refusal to act when it was first notified. There's finally an Inspector General's investigation underway, but it will be months or years before we see results from this, if ever.
The CBP continues to stand by its personnel, saying most of its staff are good people not prone to posting bigoted content to closed Facebook groups. This is a pretty safe stance to take when no one's outing the members of the 10-15 Group. But that stance has already passed its expiration date. The Intercept infiltrated the group and managed to make off with tons of screenshots before posts were deleted by members and moderators following the ProPublica article.
Not only is The Intercept publishing the screenshots it grabbed, it's publishing them with the names of CBP agents on full display. Good. Speech has consequences and DC politicians have been promising retribution. With names out in the open, the Congressional bluff has been called. Put up or shut up, reps. And I'm sure the CBP Inspector General appreciates any input it can get, even if it has to come from outside sources.
The secret Facebook group, "The Real CBP Nation," which has around 1,000 members, is host to an image that mocks separating migrant families, multiple demeaning memes of Rep. Alexandria Ocasio-Cortez, a New York Democrat, and other derisive images of Asians and African Americans.
According to posts seen by CNN, members of this closed group expressed their disappointment at the exposure and semi-shuttering of the 10-15 Group. Some members also called those bailing on the now-toxic group "cowards," as if distancing yourself from a sinking ship filled with burning shit wasn't the CBP way.
And, once again, there's evidence CBP officials were well aware of these groups and the content they posted.
In 2018, a senior official warned all agency employees of potential discipline, after having been informed of a private Facebook group with inappropriate and offensive posts, according to a memo obtained by CNN.
"Recently the Agency was made aware of a private Facebook group page that only a specific group of CBP employee could access, on which inappropriate and offensive posts were made," Klein wrote.
Either no one got the memo or memos simply don't work. Top DHS and CBP officials will likely pretend this represents a small portion of the CBP workforce -- the worst of the worst. But it doesn't. It represents a cross-section of its workforce. Some have no qualms posting bigoted memes to Facebook. For other employees, having a job that caters to their biases and prejudices is its own reward.
I've been thinking a lot lately about how so many of the "problems" that people bring up with regards to the internet these days -- much of them having to do with disinformation, misinformation, propaganda, etc. -- are really manifestations of the problems of people in general, perhaps magnified by technology. At some point I'll likely write more on this concept, but as such it's difficult to see how blaming the technology solves the underlying problems of humanity. It's treating the symptoms, not the disease. Or, worse, in many cases it seems like an attempt to brush the disease under the rug and hope it disappears (to mix metaphors a bit). Alicia Wanless has written a long an interesting post that makes a similar, though slightly different point.
She also notes that blaming technology seems unlikely to solve the underlying issues.
And yet, in the fear that is spreading about the future of democracy and threats of undue influence (whatever that might mean), there is no shortage of blame and simplified calls to action: “the governments should regulate the tech companies!”; “the tech companies should police their users!”; “we should do back whatever is done against us – so, more propaganda!” In all of this, I cannot help but think we might be missing something; are we fundamentally approaching the problem in the wrong way? ?
Technology might have brought us to this point where we now must look at ourselves, our society in this digital mirror. But it is not to blame. These issues are not new. Persuasion, manipulation, deception, abuse – none of these are new. Humans have been doing and suffering from these things forever. What is new is the scale, speed and reach of such things. If anything, ICTs have only amplified our pre-existing issues – and as such, no technical solution can truly fix it.
She further notes that, since technology is changing so rapidly, any attempt to solve the "problems" discussed above by targeting tech platforms is unlikely to have much long term impact, as the purveyors of disinformation will just move elsewhere. Now that people know how to leverage technology in this manner, it's not like they're just going to stop. Furthermore, she notes that merely censoring and brushing content under the rug can often have the opposite of the intended effect (something we've talked quite a bit about here):
Filtering and blocking people into protection is not just impractical in a digital age, it is dangerous. This is the informational equivalent of obsessive disinfectant use – what will happen to that bubbled audience when “bad” information inevitably comes through? To say nothing of the consequences for democracy in such a managed information environment. After all, blocking access to information only makes it more coveted through the scarcity effect. And given that the people exposed to misinformation are seldom those who see the corrective content questions remain about the utility of efforts to dispel and counter such campaigns. If we want to protect democracy, we must make citizens more resilient and able to discern good information from bad.
That last line is important, but I've seen a number of people pushing to regulate tech more mock this idea, rolling their eyes and saying "media literacy is not the answer." I'm not convinced of that, in general, but Wanless has a slightly different approach. She's not just talking about media literacy, but about the fact that the western world seems blind to the fact that we have spent decades promoting our own propaganda on the rest of the world, and they find it laughable when we complain about them doing the same, using the technology that we developed.
Of course, to do this, we in liberal democracies, will have to come to terms with something we have avoided for a while: how much persuasion is acceptable and where are the lines? What is good versus bad information and who decides that? Who can legitimately use persuasion and when? ? This is the elephant in the room – persuasion. And it is not enough to say that when we use persuasion it is acceptable, but when an adversary does so it is not.
Until we in the West come to terms with our awkward relationship with propaganda and persuasion, we cannot effectively tackle issues associated with the manipulation of the information environment. For far too long our aversion to persuasion has made us hypocrites, trying to disguise attempts at influencing other populations with various euphemisms (which also might explain why words are failing us now in describing the situation).
As she notes, we in the west can argue that US and western influence campaigns around the world were different from, say, Russian or Chinese influence campaigns these days, but it's a distinction that doesn't much matter to those pushing disinformation campaigns today. They see it all as the same thing.
She ends her piece with some suggestions on what to do -- and I recommend going there to read them -- but I'm still thinking a lot about how the internet has really held up a mirror to society, and we don't really like what we see. But rather than recognizing that we need to fix society -- or some of our political corruptions -- we find it easier to blame the messenger. We find it easier to blame the tool that held up this mirror to society.
We can't fix the underlying problems of society -- including over-aggressive tribalism -- by forcing tech companies to be arbiters of truth. We can't fix underlying problems of society by saying "well, this dumb view should never be allowed to be shared" no matter how dumb. We fix the underlying problems in society by actually understanding what went wrong, and what is still going wrong. But fixing society is hard. Blaming the big new(ish) companies and their technology is easy. But it's not going to fix anything at all if we keep denying the larger fundamental flaws and problems in society that created the conditions that resulted in the tech being used this way.
I don't often mention it here, because it's way off-topic, but I'm a bit obsessed with baseball -- and only rarely does that cross over into a Techdirt related topic, such as when MLB tried to claim it owned stats (spoiler alert: it does not). Anyway, a month or two ago I came across a wonderful Twitter feed called @Jomboy_ who mostly tweets out (funny and clever) stuff about the NY Yankees, but also every day or so puts out really amazing and hilarious "breakdown" videos about events throughout baseball. These vignettes are usually less than two minutes long, and frequently feature what appear to be his amazingly accurate lip-reading skills (not to mention capturing little things happening in the background) and also a bit of well-placed profanity (if you happen to be listening in a workplace that might not appreciate that). I usually watch them on Twitter, but for embedding purposes, it's easier to use YouTube (where he also posts the videos), so I'll use some examples from there (and intersperse a few, because if you like baseball, they're wonderful). Here's one of his "breakdowns" of the only "intentional balk" I've ever seen:
I even randomly tweeted out that any baseball fans should check out his account just last week. And, of course, nothing in all of that makes this a Techdirt story. But I was somewhat amazed, just a day after I tweeted about Jomboy, to see an article at Fangraphs that is (1) all about Jomboy (whose real name is apparently Jimmy O'Brien) but, more importantly (2) totally relevant to Techdirt. Basically, it tells the story of how Major League Baseball's obsessive desire to own and control everything (see earlier note about its silly, years-long failed battle to own freaking stats) is contributing to baseball's continuing failure to be of any interest at all to a younger generation -- in part because baseball content rarely has shown up on social media.
This might sound a bit surprising to folks who do follow the sports business market. From the outside, many people have pointed out that Major League Baseball was really the first major sports league to embrace the internet -- and it did so successfully from a business standpoint. It built out MLB Advanced Media, which was such a good platform that other leagues even started using it, leading to it being called BAMTech, and Disney buying a majority share in 2017 for a big chunk of change. And, to be clear, MLB does a really good job with its streaming platform, that seems to work really well. But with that platform came way too much control -- and it has leveraged that to shut down things happening outside of its control. And that includes a lot of fan stuff.
“Because they have such a successful system within, they neglected every other social media because they have their own platform,” says O’Brien. “You couldn’t find a single MLB highlight on YouTube. There’s kids now that grew up not seeing baseball highlights for 10 years because they would have to go to MLB.com. Did you ever try to embed an MLB video back in the day? Or share it with a friend? It was, like, impossible.”
MLB has (thankfully) loosened the rules a bit over the past couple years, but only if you don't make any money:
Until 2017, YouTube content like Jomboy’s would be unthinkable. And while rules are far more relaxed in 2019, there’s still no way baseball channels can monetize directly through the platform. MLB will claim and remove their videos, and after an arduous appeal process, the videos will either remain off the site or re-emerge days later with revenue split between the creator and MLB.
And of course, that means that copyright is stepping in and stopping fans from promoting the freaking game:
“MLBAM doesn’t make things too easy for us,” says Joseph Solano, another Yankees content creator who has found a following on Twitter, Instagram and YouTube under the name Joezmcfly. “All the time, they will put up copyright claims on my videos. It’s gotten to the point that I’d rather not monetize, just so that I can get the content out there for the people.”
And you certainly understand the instinct. Control and copyright are direct. "I control it, I monetize it." But one of the points we've tried to make going back two decades at this point, is that sometimes it helps to look at the bigger picture -- and often a big part of that bigger pictures is that giving up a little short term control leads to better long-term outcomes.
As the article notes, the other sports, while perhaps not controlling everything, have realized that letting fans actually do this kind of thing attracts more fans and more interest to the overall game. And yet, Jimmy and the others profiled in the article feel like it's an effort to promote baseball for free. That's nuts.
Of course, this is nothing new. It actually goes back decades. People today are amazed to learn this, but it used to be considered perfectly fine for fans or third parties to make merchandise with team logos and such. But in a series of lawsuits starting in the 1960s through the 1980s, sports leagues freaked out, and decided they wanted to license every damn use. And while that was short-term profitable for the leagues, it hurt the ability of fans to show their own support.
For years, one of the key themes around here is just that you don't have to get paid for every single use, and sometimes lessening control can lead to wider long-term benefits. Jomboy's great videos demonstrate that. Are they infringing on MLB's copyright? I'd argue they're clearly fair use (and, no, the lame "without express written consent" to make use of "accounts or descriptions of the game" is not an issue here as they are legal nonsense that is mostly meaningless) and thus, MLB shouldn't have any right to block the monetization efforts in the first place. But, in this day and age, it's just not worth making a fair use fight just to get your YouTube revenue, which is unfortunate. Now that I've discovered Jomboy, I'm hoping he continues to make these videos -- and it seems crazy that he has to hope that Major League Baseball will "let" him promote their sport in a fun, enjoyable way.
For years we've noted how as a product of the cable and broadcast industry, Hulu spent many years going out of its way to avoid being truly disruptive. Past owners 21st Century Fox, AT&T, Disney and Comcast/NBC spent a lot of time ensuring the service wasn't too interesting -- lest it cannibalize the company's legacy cable TV cash cow. As a result, Hulu spent a good chunk of the last decade stuck in a sort of existential purgatory, with a rotating crop of execs trying to skirt the line between giving consumers what they actually want, and being a glorified ad for traditional cable television.
As cable and broadcast executives slowly realized that cord cutting was a threat that wasn't going away, things began to shift. More recently, owners like 21st Century Fox and AT&T have headed to the exits to focus on their own streaming efforts. That exodus continued this week with Comcast announcing it would be giving up full operational control of Hulu to Disney effective immediately.
You might recall that Comcast was banned from meddling in Hulu management as a condition of its 2011 merger with NBC/Universal, with regulators worried that the company would attempt to undermine Hulu to protect its traditional cable TV revenues. Comcast being Comcast, the company largely ignored those conditions, one of several reasons regulators balked at its attempted acquisition of Time Warner Cable years later.
Under the terms of this new deal, Comcast has the option of selling its entire stake to Disney by 2024:
"Comcast also will be allowed to sell its 33% stake in Hulu to Disney in 2024 at a valuation of at least $27.5 billion, even if the streaming service is worth less, according to the agreement. Comcast is guaranteed at least $5.8 billion for its Hulu stake, according to the agreement.
As part of the deal, Disney has agreed to pay Comcast for its Hulu content for the next five years. NBC channels will be on Hulu Live at a higher rate than previously agreed. NBCUniversal, CNBC’s parent company, will also be able to run the same content on its own streaming service, which is expected to launch in next spring."
For the immediate future, this looks like a promising outcome for cord cutters. Hulu is finally freed from managers who really didn't much want the service to succeed because it might disrupt their own services. And while it's notably smaller than Netflix (137 million subscribers worldwide) and Amazon (100 million Prime subscribers), its 20 million-strong userbase puts it well ahead of numerous other emerging options like Dish's Sling TV and AT&T's DirecTV Now.
That said, the service isn't quite out of the woods yet. Researchers predict that every broadcaster in existence is likely to have its own streaming service on the market by 2022, and many of those companies will be eager to lock that content away in exclusivity silos, well away from competitors. And with Disney planning its own looming streaming service (Disney+) as a repository for its Star Wars, Marvel, Pixar, and kids programming, it's still possible that Disney eventually sees Hulu to be either redundant or a threat to those ambitions.
A key claim by those who support Article 13 is that it's necessary to get "fair compensation" for artists on the internet. Whenever more specifics are needed, supporters almost always point to musicians, and talk about "the value gap" and how internet companies are taking all the money and recorded music has been destroyed by the internet and all of that. And, of course, if you've followed the rhetoric in the last 20 years since the introduction of Napster, you'd believe that the recorded music business is in a never-ending death spiral. Of course, as we've pointed out, the "recorded music business" is just one segment of the larger music business, and nearly all other aspects of it (especially live music) have continued to grow pretty consistently each year.
But, a funny thing has happened in the past few years that undermines the doom and gloom message: the recorded music business has been growing. Rapidly. And it's entirely due to the internet and all of the various services that the RIAA had been slamming for years. Indeed, it did seem notable when the RIAA put out its latest revenue numbers for 2018, showing the incredibly rabid growth over the past four years of the recorded music business. So I started taking an even closer look at what's happened over the past decade. Thankfully, the RIAA actually makes all of the data available, and so I put together this handy chart:
So, yes, things sort of bumbled along for the first few years of the past decade, but the last few years are ones of massive and incredibly rapid growth due to online streaming. The US recorded music business is right at about $10 billion (if you're interested, the live music business in the US is about the same, counting both ticket sales and sponsorship).
Now, you might say, well that's just the US, and Article 13 is about Europe. Thankfully, IFPI puts out similar numbers (counted slightly differently, unfortunately, so it's not an exact comparison). IFPI has not yet released its 2018 numbers, but looking at the report from last year you see that the global numbers show a pretty similar change, again, with things bottoming out a few years back, and then showing new growth, almost entirely from the rapid increase in streaming services. I expect when IFPI releases its 2018 numbers, we'll see just as dramatic a bump up as we see with the RIAA's US numbers:
So, it certainly looks like the internet (as some of us predicted...) has absolutely been the savior to the music business -- it just took the legacy companies hellishly long to embrace it.
But, again, I'm left wondering why is it that we need Article 13 again? To hear Axel Voss and other supporters talk about it, the recording industry is in a death spiral without it. Yet, the actual stats show things are going quite well and growing like gangbusters.
Okay, we've got quite a story today about how copyright is a total mess and not really fit for the way the internet works today. It involves a comedian, Miel Bredouw, a short silly (perhaps NSFW) video she made, the asshole dudebros over at Barstool Sports, Twitter and the DMCA. There are so many details to parse out before we get to the lessons to learn from this, so let's take this one step at a time.
More than two years ago, in November of 2016, Bredouw made a 36-second video in which she muses on the fact that the well known (and probably NSFW) song Slob on my Knob by Three 6 Mafia, can be sung to the tune of Carol of the Bells, which (as you probably know) is a classic Christmas carol. The video is embedded here, though (again) I warn you that you might not want to watch it at work:
Anyway, that video went fairly viral, as one of many videos on YouTube with, um, unique takes on the Three 6 Mafia song.
Fast forward to the end of last year, when Barstool Sports enters the picture. We've written about Barstool Sports twice -- and both times involve them being (1) total assholes and (2) totally ignorant or abusive about intellectual property law. If you're not familiar with Barstool Sports, let's just say that it's the kind of work environment where it wouldn't just be okay to watch a video like the one above while at work, but it would likely be encouraged.
Anyway, in December, Barstool Sports took Bredouw's now two-year-old video and reposted it to their own Twitter account, without any credit (and certainly suggesting it was a Barstool Sports production). Bredouw tweeted at them that this was uncool. Yesterday, Bredouw then tweeted out a thread about what happened in the intervening two months, and it is quite a story.
After Barstool ignored Bredouw's request for credit, she filed a DMCA notice with Twitter, who took the video down. Once the DMCA takedown occurred, Barstool Sports finally reached out to Bredouw with an apology, asking her to "remove that strike" from their account:
In December, they reuploaded one of my videos without credit. I asked for credit, was ignored, and filed a DMCA takedown. Twitter quickly took it down and IMMEDIATELY Barstool's social guy sends me an email. I don't respond. He emails again in early February. I don't respond. pic.twitter.com/GYLYOnHFXq
Not really caring about what Barstool Sports wants, Bredouw ignores the request. And then another request in early February. A few weeks go by and apparently things "escalate" with the company's General Counsel, Mark Marin, who is, like, a real lawyer and everything, sending Bredouw slightly more urgent emails offering increasing amounts for her to retract the DMCA notice. It starts with an offer of a $50 giftcard to Barstool's merch store, to eventually an "anxious" offer of $2,000 cash:
I honestly thought it was finally over after two weeks of silence. Until this morning, I get another email from legal guy now offering me $2000. Which I would never take (10000% fuck barstool sports) but EVEN IF I wanted to... extortion? Like in what world. pic.twitter.com/s561QpZBPX
Apparently, Barstool Sports, in a manner that only Barstool Sports folks would think makes sense, decided that the proper course of action was to then have a bunch of people totally bombard Bredouw with demands to read her messages (as if she hadn't been):
Then the full on harassment begins. I didn't screenshot all the messages before deleting but across my IG, my twitter, my email, my PODCAST'S INSTAGRAM, TWITTER, AND EMAIL they send me these messages. Hundreds. I block them. They find me again. Still, I don't respond. pic.twitter.com/bpPEtNupBJ
This is all pretty obnoxious. And when Bredouw still ignores the $2,000 offer, Barstool's legal dude in chief decides to file an obviously bogus DMCA counternotice claiming:
We believe that this material was removed as a result of an error. The content shown in the video was sent to us from a user who claimed to have full rights to license and assign the content to us to post on our account. After receiving this DMCA Notice, we reached out multiple times through multiple platforms (email, twitter DM) to attempt to resolve the issue directly with @miel, but @miel has not responded to any of our attempts to communicate and even blocked us from DM'ing without any justification. Unless and until @miel elects to engage in a discussion to determine whether we had the rights to post the video, we continue to assert that we had the rights to post the content that was removed.
I guess you could argue that Barstool Sports deserves at least partial credit for accurately describing that they tried to reach out to Bredouw and she ignored them. Though, the whole "blocked us without justification" is kind of rich -- considering how they bombarded her with demands and, frankly, it was not her problem to deal with. But that last line is utter bullshit. Even a quick review of the basic facts would demonstrate to Barstool's very real, serious lawyer who has a JD and everything, that it wasn't she who submitted the video to them and it was obviously her video in the first place.
Either way, Twitter then did exactly what it should do under the law, upon receiving the counternotice, and let Bredouw know that it would be putting the video back up unless she filed a lawsuit withing 10 days. This is not some awful, arbitrary move by Twitter, this is how the DMCA's counternotice process works (see 512(2)(B) and (C)). Bredouw has no interest in suing (indeed, seems to have little interest in dealing with any of this) and actually it's not even clear she could sue, as I'm not sure she registered a copyright on the video in the first place.
"Where Barstool went wrong is that when she refused to respond and it became clear she had no intention of speaking with us we should have ended it," Barstool's founder, Dave Portnoy, told Business Insider in an email. "Unfortunately Barstool Sports has idiots in our company much like many other companies and those idiots acted like idiots. I regret our lawyer offering a 50 dollar gift card to our store not because it's illegal in any manner but it's just so moronic and makes us look like assholes. That's why lawyers should not be on social media."
Of course, the fairly obvious backdrop to what's happening here is the requirement under the DMCA for internet sites to have a "repeat infringer policy," in section 512(i). There have been a bunch of lawsuits lately exploring just what that repeat infringer policy must look like, but it's fairly critical for sites like Twitter to have one if it wants to make use of the DMCA's safe harbors. And thus, if an account -- like Barstool Sports -- gets a bunch of strikes, Twitter will shut down its account. The ongoing theory behind Barstool's very real lawyer and his desperate pleas is that Barstool Sports already has a few DMCA strikes, and it's getting close to losing its Twitter account.
And that's where things stand, as I started writing up this post (I'm afraid to check what's happened while I'm writing it). I will note that... there seems to be considerable misplaced anger directed at Twitter for all of this. Mashable says this story "reveals Twitter's copyright issues" while the Verge's weird take is that this "shows how Twitter's copyright system can hurt creators."
That's nonsense. None of this should be on Twitter, who is just accurately following what the law enables, and it's the process that most of the time the very same people who are now criticizing Twitter would be celebrating, because it's what allows companies to minimize the (very real) damage of bogus takedowns. If the takedown really is bogus, it should be easy to get the video back up. But what if it's the counternotice that's bogus? That's... trickier. As the law is set up, then the only response is to sue. And, again, it's not clear that Bredouw even could sue if she wanted to. She would have needed to register the video beforehand, and even then the copyright on the video would be a relatively thin one, as much of the video is actually a mashup of two songs that she does not hold any copyright on (to be fair, the music for Carol of the Bells, is in the public domain, as a work composed in 1914 (sorta)*). The lyrics, though, are under copyright -- but not to Bredouw. The video could still potentially get a copyright, but it would seem that whoever holds the original copyright to Three 6 Mafia's songwriting would have an even stronger claim.
Either way, this highlights two key points: firstly, the DMCA was designed for very different situations than this one. Which is why this fits so badly on all fronts and no one is happy. Bredouw didn't want Barstool Sports taking credit for her viral video. Barstool Sports didn't want to lose its Twitter account. Twitter doesn't want to lose its DMCA safe harbors.
Secondly, the reality is that we shouldn't need copyright to solve this kind of situation anyway. That's not what worked here. Indeed, copyright has created a solution that pisses everyone off. What worked was social shaming. Bredouw's Twitter post simply made everyone aware (or reconfirmed for those who already knew it) that Barstool Sports are a bunch of dudebro assholes (which the company seems to fully admit to). The real issue here was one where Bredouw didn't want the economic advantages that copyright enables, but rather something that is not actually tied to copyright: credit for her, um, let's call it "creativity." But that's not what copyright was designed for. But, because it's the tool that's available, that's what was used to take down the misappropriated, un-credited video, and that resulted in a legal process ill-suited to what the dispute was really about.
In short: copyright is a really big and misguided hammer for situations such as this, and public shame is a much better tool. But, we shouldn't be attacking Twitter for following the law appropriately. And we should be pointing out that Barstool Sports truly are a bunch of assholes.
* Dammit, this post is seriously long enough not to go down this rabbit hole, but we're already here, so let's go: Wikipedia notes that Carols of the Bells had the music written in 1914, but based on Ukrainian folk music. But there are lots of other dates involved with the song, including its first "Western" performance in 1919 and its first performance in the US in 1921. The article also notes that while the music is in the public domain, the lyrics are still under copyright. That struck me as odd, but apparently American composer Peter J. Wilhousky got a copyright on a new set of lyrics for the music in 1936 -- meaning that they are still under copyright (even though when he got that copyright, he would have assumed that the lyrics went into the public domain many years ago). Either way, none of the lyrics are used in the video at issue here, so the use of the music is clearly public domain.
So... this post is going to discuss something involving freshman Congresswoman Alexandria Ocasio-Cortez. For a variety of reasons -- some good, some bad, some truly awful -- Ocasio-Cortez (or AOC, as people call her) seems to elicit quite a strong reaction from people, both pro and con. This post is not about her, or her views, or whatever you happen to think about any of it. If you want to argue about her in the comments, feel free, just know that you'll be off-topic and will look silly. Rather, this post is about copyright -- a topic that we talk about frequently, and one on which AOC, in her new job, may at some point be asked to weigh in on as a legislator.
The latest "controversy" (if you can even call it that) began as one of the various attempts by some of her critics to dig into her past to try to prove... something(?!?), in this case by unearthing a video of her in college dancing. I remain unclear of what awful thing her critics thought this proved, but apparently it was something about how people can't possibly have been poor if they once had fun dancing. At least that was the suggestion I saw passed around, and it's about as nonsensical as copyright term extension, but alas...
There's actually a much more interesting copyright story underneath all of this, much of the history of which we've covered in detail on Techdirt in the past, but which Parker Higgins did a great job recounting on Twitter on Thursday afternoon:
The delightful dancing video of AOC that is being circulated right now* is actually part of a pretty storied, if now mostly forgotten, remix culture phenomenon. If you'll allow me...
Wired later turned much of Parker's thread into an article as well. The short version is that almost exactly 10 years ago, Sarah Newhouse put together a video taking scenes from various 1980s "brat pack" movies (mainly, and most prominently, Breakfast Club, but a few others as well) and put clips of the actors dancing to a (then) new song by the band Phoenix, called Lisztomania:
Notably, that is not the original video. Despite the band being super happy with that video (and everything that later came from it), somewhere along the way, Newhouse got dinged for it and other videos and had her entire YouTube account taken down over copyright infringements. Gotta love that DMCA requirement for a "repeat infringer" policy.
Soon after that video, a guy named Ian Parker, inspired by Newhouse's video, recreated it with his friends on a rooftop in Brooklyn:
That version is still online. It then inspired a ton of other people and social groups to build on that work and create their own, starting with a group in San Francisco. Except... that version is no longer online due to a claim by IFPI that the use of the song is infringing (remember, the band itself was thrilled about the attention this gave them...). But, of course, another version has popped up:
And there are lots and lots of others... including one from Boston University, which has a (just slightly) younger Alexandria Ocasio-Cortez having fun with some friends and recreating a localized BU version of the same video. That one's been online since 2010, just months after this whole craze started:
It is not entirely clear why the sudden spreading of clips from this video were seen as "new" since that original video has been up for nearly a decade, and it's also not at all clear why the "new" video changed the music, though if it was an attempt to hide where it originated from, that failed. I saw the initial tweet that was promoting the video, and it was obvious from the clips that this was one of the many Lisztomania videos, and it would be obvious to anyone who watched a bunch of them back then.
Earlier in 2010, Julian Sanchez had done a fun explainer video on the Evolution of Remix Culture, which we talked about a few times over the years:
Sanchez makes a few points in that video, but the key one is that the complaints that traditional copyright folks have about remix culture totally misses the point. These videos and the sharing of our unique versions of such memes is not about "freely" using someone else's stuff, but about social interactions with our own friends and communities, and putting our own stamp on things. Sanchez doesn't make this point, but it's actually a very similar situation to the way culture used to happen: storytellers would take the ideas of others and build on them and make their own versions and spread them.
Of course, Sanchez's own video was taken down (multiple times) with various bogus copyright claims. While one might argue that the fair use claims on the original videos were less strong (I'd disagree, but there are better arguments there), the idea that Julian's video was not fair use was... crazy. He was clearly commenting on the use of this music and videos for remix purposes, and it would meet all four criteria for fair use easily. Eventually, after Sanchez complained publicly about the takedowns, the demands were removed and the video lives on.
Soon after Sanchez's presentation, Larry Lessig himself used this example of remix culture -- highlighting Sanchez's video... and a whole bunch of these videos.
However, a few years later, as we covered here at Techdirt, the label with control of the copyright, Liberation Music, issued a takedown on one of Lessig's lectures about this. This was, exceedingly bizarre. Remember: Lessig was using the video clips from Julian's video, which is an explainer about the social situation and copyright policy questions raised by all of the other videos... and Liberation claimed it was infringing. Even worse, when Lessig counternoticed, Liberation told him if he didn't remove the counternotice, it would sue him. Lessig and EFF then sued Liberation seeking a declaratory judgment of non-infringement and (importantly) seeking fees for violating 512(f) of the DMCA -- which is the almost entirely toothless clause for pushing back against bogus DMCA takedowns. This was one case where it might actually have teeth. Realizing it was sunk, the following year Liberation ended up settling the case and paying an "undisclosed sum," while promising to adopt new fair use-respecting policies.
And that was, more or less, the end of that meme, until it suddenly came rushing back due to some people's infatuation with a particular Congresswoman. But there are a lot of really important copyright points embedded in this story -- starting with all of the lessons both Sanchez and Lessig highlighted in each of their videos (seriously, watch them both). But it's even more punctuated by the fact that so many of the videos that I discuss above were at one time or another taken down by copyright claims -- many of which seem entirely bogus -- and where the band has made it clear it was thrilled with these videos (as it should have been, as it gave that song a huge boost in attention). Indeed, Phoenix issued a statement (miraculously still available on Tumblr) stating: "We support fair use of our music" and also (apologies for the all caps screaming, but that's how they wrote it):
NOT ONLY DO WE WELCOME THE ILLUSTRATIVE USE OF OUR MUSIC FOR EDUCATIONAL PURPOSES, BUT, MORE BROADLY, WE ENCOURAGE PEOPLE GETTING INSPIRED AND MAKING THEIR OWN VERSIONS OF OUR SONGS AND VIDEOS AND POSTING THE RESULT ONLINE.
ONE OF THE GREAT BEAUTIES OF THE DIGITAL ERA IS TO LIBERATE SPONTANEOUS CREATIVITY - IT MIGHT BE A CHAOTIC SPACE OF FREE ASSOCIATION SOMETIMES BUT THE CONTEMPORARY EXPERIENCE OF DIGITAL RE-MEDIATION IS ENORMOUSLY LIBERATING.
WE DON’T FEEL THE LEAST ALIENATED BY THIS; APPROPRIATION AND RECONTEXTUALIZATION IS A LONG-STANDING BEHAVIOR THAT HAS JUST BEEN MADE EASIER AND MORE VISIBLE BY THE UBIQUITY OF INTERNET.
IN A FEW WORDS:
WE ABSOLUTELY SUPPORT FAIR USE OF OUR MUSIC,
AND WE CAN ONLY ENCOURAGE A NEW COPYRIGHT POLICY THAT PROTECTS FAIR USE AS MUCH AS EVERY CREATORS’ LEGITIMATE INTERESTS.
So, we have a copyright policy that pissed off the actual artists -- and only served to stifle or silence many people who were building off of it in truly creative ways that enabled a community endeavor. As Julian noted in his talk (and Lessig specifically called out), a big part of the question here is "what level of control copyright has over our social realities" and how copyright policy that is too locked down serves to limit our ability to express and share our social realities.
In his big thread, almost as an aside, Parker made a key point in this discussion that is worth repeating (over and over and over again):
Sometimes copyright maximalists seem to live in a world where every use of culture can be enumerated, quantified, and licensed. But that's not how culture works. Not at all.
Indeed, this is the entire point that the Article 13 debate in the EU is about. The supporters of Article 13 are demanding -- literally -- that the entire internet "be licensed." But think about how the above story plays out in such a world. In short, it doesn't. And while that might mean one less way for some internet morons to self-own themselves in trying to make fun of a new Congresswoman, I'm not exactly sure that's what we should be optimizing for.
Indeed, this whole story is a lesson in the power of culture and communities to actually rise above the ridiculousness of today's copyright laws (mostly) to actually showcase their communities and personalities, and that's something we should be championing. And one hopes that when copyright policy is up for discussion in Congress, that AOC gets that, now having some firsthand experience with it.
Oh, and I should note that the nature of remix and copyright and culture has continued to expand. Following from this whole mess with AOC, someone has set up a Twitter account called AOC Dances To Every Song, and it delivers exactly what it claims to. Here are just a few examples:
There are a lot more... though it would not surprise me at all to find that account is eventually shut down for... claims of copyright infringement. Because this is the insane world we live in.
For what it's worth, AOC herself has now evolved this even further by dancing in a new video, and making fun of the "controversy."
I hear the GOP thinks women dancing are scandalous.
Wait till they find out Congresswomen dance too! 💃🏽
Fifty years ago – in September 1968 – the legendary rock band Led Zeppelin first performed together, kicking off a Scandinavian tour billed as the New Yardbirds.
The new, better name would come later that fall, while drummer John Bonham’s death in 1980 effectively ended their decade-defining reign. But to this day, the band retains the same iconic status it held back in the 1970s: It ranks as one of the best-selling music acts of all time and continues to shape the sounds of new and emerging groups young enough to be the band members’ grandchildren.
Yet, even after all this time – when every note, riff and growl of Zeppelin’s nine-album catalog has been pored over by fans, cover artists and musicologists – a dark paradox still lurks at the heart of its mystique. How can a band so slavishly derivative – and sometimes downright plagiaristic – be simultaneously considered so innovative and influential?
How, in other words, did it get to have its custard pie and eat it, too?
For anyone who quests after the holy grail of creative success, Led Zeppelin has achieved something mythical in stature: a place in the musical firmament, on its own terms, outside of the rules and without compromise.
When Led Zeppelin debuted its eponymous first album in 1969, there’s no question that it sounded new and exciting. My father, a baby boomer and dedicated Beatles fan, remembers his chagrin that year when his middle school math students threw over the Fab Four for Zeppelin, seemingly overnight. Even the stodgy New York Times, which decried the band’s “plastic sexual superficiality,” felt compelled, in the same article, to acknowledge its “enormously successful … electronically intense blending” of musical styles.
Yet, from the very beginning, the band was also dogged with accusations of musical pilfering, plagiarism and copyright infringement – often justifiably.
The band’s first album, “Led Zeppelin,” contained several songs that drew from earlier compositions, arrangements and recordings, sometimes with attribution and often without. It included two Willie Dixon songs, and the band credited both to the influential Chicago blues composer. But it didn’t credit Anne Bredon when it covered her song “Babe I’m Gonna Leave You.”
The hit “Dazed and Confused,” also from that first album, was originally attributed to Zeppelin guitarist Jimmy Page. However in 2010, songwriter Jake Holmes filed a lawsuit claiming that he’d written and recorded it in 1967. After the lawsuit was settled out of court, the song is now credited in the liner notes of re-releases as “inspired by” Holmes.
‘Dazed and Confused’ by Jake Holmes.
The band’s second album, “Led Zeppelin II,” picked up where the first left off. Following a series of lawsuits, the band agreed to list Dixon as a previously uncredited author on two of the tracks, including its first hit single, “Whole Lotta Love.” An additional lawsuit established that blues legend Chester “Howlin’ Wolf” Burnett was a previously uncredited author on another track called “The Lemon Song.”
Musical copyright infringement is notoriously challenging to establish in court, hence the settlements. But there’s no question the band engaged in what musicologists typically call “borrowing.” Any blues fan, for instance, would have recognized the lyrics of Dixon’s “You Need Love” – as recorded by Muddy Waters – on a first listen of “Whole Lotta Love.”
Dipping into the commons or appropriation?
Should the band be condemned for taking other people’s songs and fusing them into its own style?
Or should this actually be a point of celebration?
The answer is a matter of perspective. In Zeppelin’s defense, the band is hardly alone in the practice. The 1960s folk music revival movement, which was central to the careers of Baez, Holmes, Bredon, Dixon and Burnett, was rooted in an ethic that typically treated musical material as a “commons” – a wellspring of shared culture from which all may draw, and to which all may contribute.
Most performers in the era routinely covered “authorless” traditional and blues songs, and the movement’s shining star, Bob Dylan, used lyrical and musical pastiche as a badge of pride and display of erudition – “Look how many old songs I can cram into this new song!” – rather than as a guilty, secret crutch to hold up his own compositions.
Why shouldn’t Zeppelin be able to do the same?
On the other hand, it’s hard to ignore the racial dynamics inherent in Led Zeppelin’s borrowing. Willie Dixon and Howlin’ Wolf were African-Americans, members of a subjugated minority who were – especially back then – excluded from reaping their fair share of the enormous profits they generated for music labels, publishers and other artists.
Like their English countrymen Eric Clapton and The Rolling Stones, Zeppelin’s attitude toward black culture seems eerily reminiscent of Lord Elgin’s approach to the marble statues of the Parthenon and Queen Victoria’s policy on the Koh-i-Noor diamond: Take what you can and don’t ask permission; if you get caught, apologize without ceding ownership.
Led Zeppelin was also accused of lifting from white artists such as Bredon and the band Spirit, the aggrieved party in a recent lawsuit over the rights to Zeppelin’s signature song “Stairway to Heaven.” Even in these cases, the power dynamics were iffy.
Bredon and Spirit are lesser-known composers with lower profiles and shallower pockets. Neither has benefited from the glow of Zeppelin’s glory, which has only grown over the decades despite the accusations and lawsuits leveled against them.
A matter of motives
So how did the band pull it off, when so many of its contemporaries have been forgotten or diminished? How did it find and keep the holy grail? What makes Led Zeppelin so special?
I could speculate about its cultural status as an avatar of trans-Atlantic, post-hippie self-indulgence and “me generation” rebellion. I could wax poetic about its musical fusion of pre-Baroque and non-Western harmonies with blues rhythms and Celtic timbres. I could even accuse it, as many have over the years, of cutting a deal with the devil.
Instead, I’ll simply relate a personal anecdote from almost 20 years ago. I actually met frontman Robert Plant. I was waiting in line at a lower Manhattan bodega around 2 a.m. and suddenly realized Plant was waiting in front of me. A classic Chuck Berry song was playing on the overhead speakers. Plant turned to look at me and mused, “I wonder what he’s up to now?” We chatted about Berry for a few moments, then paid and went our separate ways.
Brief and banal though it was, I think this little interlude – more than the reams of music scholarship and journalism I’ve read and written – might hold the key to solving the paradox.
Maybe Led Zeppelin is worthy because, like Sir Galahad, the knight who finally gets the holy grail, its members’ hearts were pure.
During our brief exchange, it was clear Plant didn’t want to be adulated – he didn’t need his ego stroked by a fawning fan. Furthermore, he and his bandmates were never even in it for the money. In fact, for decades, Zeppelin refused to license its songs for television commercials. In Plant’s own words, “I only wanted to have some fun.”
Maybe the band retained its fame because it lived, loved and embodied rock and roll so absolutely and totally – to the degree that Plant would start a conversation with a total stranger in the middle of the night just to chat about one of his heroes.
This love, this purity of focus, comes out in its music, and for this, we can forgive Led Zeppelin’s many trespasses.
The key idea behind open access is that everyone with an Internet connection should be able to read academic papers without needing to pay for them. Or rather without needing to pay again, since most research is funded using taxpayers' money. It's hard to argue against that proposition, or that making information available in this way is likely to increase the rate at which medical and scientific discoveries are made for the benefit of all. And yet, as Techdirt has reported, academic publishers that often enjoy profit margins of 30-40% have adopted a range of approaches to undermine open access and its aims -- and with considerable success. A recent opinion column in the Canadian journal University Affairs explains how traditional publishers have managed to subvert open access for their own benefit:
An ironic twist to the open-access movement is that it has actually made the publishers richer. They've jumped on the bandwagon by offering authors the option of paying article processing charges (APCs) in order to make their articles open access, while continuing to increase subscription charges to libraries at the institutions where those authors work. So, in many cases, the publishers are being paid twice for the same content -- often charging APCs higher than purely open access journals.
Another serious problem is the rise of so-called "predatory" open access publishers that have distorted the original ideas behind the movement even more. The Guardian reported recently:
More than 175,000 scientific articles have been produced by five of the largest "predatory open-access publishers", including India-based Omics publishing group and the Turkish World Academy of Science, Engineering and Technology, or Waset.
But the vast majority of those articles skip almost all of the traditional checks and balances of scientific publishing, from peer review to an editorial board. Instead, most journals run by those companies will publish anything submitted to them -- provided the required fee is paid.
These issues will be hard, if not impossible, to solve. As a result, many are now looking for a different solution to the problem of providing easy and cost-free access to academic knowledge, this time in the form of preprints. Techdirt reported earlier this year that there is evidence the published versions of papers add very little to the early, preprint version that is placed online directly by the authors. The negligible barriers to entry, the speed at which work can be published, and the extremely low costs involved have led many to see preprints as the best solution to providing open access to academic papers without needing to go through publishers at all.
Inevitably, perhaps, criticisms of the idea are starting to appear. Recently, Tom Sheldon, who is a senior press manager at the Science Media Centre in London, published a commentary in one of the leading academic journals, Nature, under the headline: "Preprints could promote confusion and distortion". As he noted, this grew out of an earlier discussion paper that he published on the Science Media Centre's blog. The Science Media Centre describes itself as "an independent press office helping to ensure that the public have access to the best scientific evidence and expertise through the news media when science hits the headlines." Its funding comes from "scientific institutions, science-based companies, charities, media organisations and government". Sheldon's concerns are not so much about preprints themselves, but their impact on how science is reported:
I am a big fan of bold and disruptive changes which can lead to fundamental culture change. My reading around work on reproducibility, open access and preprint make me proud to be part of a scientific community intent on finding ways to make science better. But I am concerned about how this change might affect the bit of science publication that we are involved with at the Science Media Centre. The bit which is all about the way scientific findings find their way to the wider public and policymakers via the mass media.
One of his concerns is the lack of embargoes for preprints. At the moment, when researchers have what they think is an important result or discovery appearing in a paper, they typically offer trusted journalists a chance to read it in advance on the understanding that they won't write about it until the paper is officially released. This has a number of advantages. It creates a level playing field for those journalists, who all get to see the paper at the same time. Crucially, it allows journalists to contact other experts to ask their opinion of the results, which helps to catch rogue papers, and also provides much-needed context. Sheldon writes:
Contrast this with preprints. As soon as research is in the public domain, there is nothing to stop a journalist writing about it, and rushing to be the first to do so. Imagine early findings that seem to show that climate change is natural or that a common vaccine is unsafe. Preprints on subjects such as those could, if they become a story that goes viral, end up misleading millions, whether or not that was the intention of the authors.
That's certainly true, but is easy to remedy. Academics who plan to publish a preprint could offer a copy of the paper to the group of trusted journalists under embargo -- just as they would with traditional papers. One sentence describing why it would be worth reading is all that is required by way of introduction. To the extent that the system works for today's published papers, it will also work for preprints. Some authors may publish without giving journalists time to check with other experts, but that's also true for current papers. Similarly, some journalists may hanker after full press releases that spoon-feed them the results, but if they can't be bothered working it out for themselves, or contacting the researchers and asking for an explanation, they probably wouldn't write a very good article anyway.
The other concern relates to the quality of preprints. One of the key differences between a preprint and a paper published in a journal is that the latter usually goes through the process of "peer review", whereby fellow academics read and critique it. But it is widely agreed that the peer review process has serious flaws, as many have pointed out for years -- and as Sheldon himself admits.
Indeed, as defendersnote, preprints allow far more scrutiny to be applied than with traditional peer review, because they are open for all to read and spot mistakes. There are some new and interesting projects to formalize this kind of open review. Sheldon rightly has particular concerns about papers on public health matters, where lives might be put at risk by erroneous or misleading results. But major preprint sites like bioRxiv (for biology) and the upcoming medRxiv (for medicine and health sciences) are already trying to reduce that problem by actively screening preprints before they are posted.
Sheldon certainly raises some valid questions about the impact of preprints on the communication of science to a general audience. None of the issues is insurmountable, but it may require journalists as well as scientists to adapt to the changed landscape. However, changing how things are done is precisely the point about preprints. The present academic publishing system does not promote general access to knowledge that is largely funded by the taxpayer. The attempt by the open access movement to make that happen has arguably been neutered by shrewd moves on the part of traditional publishers, helped by complaisant politicians. Preprints are probably the best hope we have now for achieving a more equitable and efficient way of sharing knowledge and building on it more effectively.
