Getting Upload Filters Wasn't Enough: EU Copyright Industry Starts Stealth Campaign To Demonize Internet Companies Even More

from the won't-somebody-think-of-the-children? dept

The EU Copyright Directive was supposed to bring copyright into the digital age. Instead, it turned into an attack on the Internet ecosystem by companies that once dominated analog media, and which are still struggling to accept the arrival of online services with a global reach. For example, the upload filters that are unavoidable under Article 13/17 of the Directive are really directed against Google, which ironically won't be much inconvenienced by them. Ordinary people, by contrast, may find their perfectly legal uploads forbidden without explanation. You might think the EU copyright companies would be pretty satisfied now they have this powerful new right to block uploaded materials using automated filters as their proxy, without needing a judge's approval. Not a bit of it. The German Web site Netzpolitik has obtained a leaked document revealing a coordinated campaign by copyright companies to hammer home the message that Internet companies are today's baddies:

politicians at national and European level, as well as officials and judges who have to make decisions and judgments against the five digital monopolists Google, Facebook, Amazon, Apple and Microsoft, need to be supported indirectly. The successful enforcement of our rights as broadcasters and press publishers depends on precisely these authorities and court decisions (Federal Ministry of Justice and Consumer Protection, EU Competition Commission and [Court of Justice of the European Union], Regional and Higher Regional Courts). The importance of continued information to the wider public has been demonstrated by the adoption of the EU Copyright Directive.

Here are the specific aims and how the copyright companies hope to achieve them:

Objective: To influence the formation of public opinion on dealing with digital monopolists and the resulting indirect training of officials, politicians, judges and decision-makers to make judgments and decisions that ensure that the digital monopolists once more comply with the law. That is: antitrust law, data protection law, laws protecting children and adolescents, tax law, equality laws and the protection of intellectual property.

Selected path: The concerns of originators and their copyright holders, composers, music and press publishers, authors as well as broadcasters and their individual authors, are mentioned, but not highlighted. This problem is presented as one of many, perhaps even larger ones. Only in this way we avoid the comment of critics that we are only concerned with the economic interests of our media companies, rights owners and authors.

So the EU copyright companies want to pretend the campaign is about tackling society's big challenges -- and not about boosting their own profits. After all, that lie worked well enough when used during the vicious lobbying in support of the worst aspects of the Copyright Directive, so why not try it again, but on a larger scale? The new campaign has its own Web site, "Fair Net", which turns the "OK Google" command into a "Not OK" theme. For example:

Not OK, that profits are more important than freedom of speech and the press.

That's rather rich coming from the companies that helped ram through Article 13/17 and Article 11 in the EU Copyright Directive, which do precisely that -- putting copyright companies' profits ahead of freedom of speech and the press. The site's final argument is a classic:

Not OK, that the Internet giants are not doing enough to protect the little ones.

Resorting to this tired old kind of emotional blackmail pretty much sums up this shoddy campaign. It shows that there is no dirty trick that the copyright industry won't stoop to. And it confirms that no matter how many special privileges they are given to ride roughshod over the rights of citizens in an attempt to prop up their outdated business models, they always want more.

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Filed Under: antitrust, article 13, article 17, copyright, for the children, internet companies, propaganda, upload filters

Protocols, Not Platforms: A Technological Approach to Free Speech

from the my-new-article dept

For many years now, I've talked about why so many of the problems that face the current internet could be understood by looking at how we moved from an internet dominated by open protocols to one dominated by central platforms -- and I continue to note that many of those problems could be solved by moving back to open protocols (with some modern additions). I first raised this idea nearly five years ago, when people were first debating how internet platforms should moderate toxic speech. It came up again last summer in the context of the various fights over "deplatforming" certain individuals. I mentioned it, yet again, earlier this year in noting that this would be the most effective way to truly create competition and "break up" the big internet platforms.

I've hinted that I was working on a longer paper about this, and I'm happy to note that the Knight First Amendment Institute at Columbia University has now published that essay, entitled: Protocols, Not Platforms: A Technological Approach to Free Speech. It's a part of a new essay series the Institute has just published, called Free Speech Futures, in which various scholars and experts "reimagine" the 1st Amendment.

The article is long, but I wanted to be fairly thorough in explaining what I'm talking about -- and highlighting what might go wrong as well. As I note early on:

This article proposes an entirely different approach—one that might seem counterintuitive but might actually provide for a workable plan that enables more free speech, while minimizing the impact of trolling, hateful speech, and large-scale disinformation efforts. As a bonus, it also might help the users of these platforms regain control of their privacy. And to top it all off, it could even provide an entirely new revenue stream for the platforms.

That approach: build protocols, not platforms.

I don't know that this is the right solution. I don't know that it will work. But I do think it makes a lot more sense than almost every other proposed idea right now, most of which seem likely to simply lock in today's dominant players under a heavily regulated regime that likely stifles many potentially more innovative services, while similarly locking in the idea that we need to let the big internet companies "protect" our privacy. My idea would actually take the various internet providers out of the privacy protection business altogether, and move us to a world where the ends of the network (the users) have much more power and control, protected by encryption and better tools for managing our own privacy. Indeed, it even suggests possibilities for business models that don't rely on "surveillance" to work.

At a time when so many proposals for how to deal with the big internet companies seem focused on spite and anger at those companies, rather than thoughtful discussions of how we get to what's coming next, at the very least I'm hopeful that others can be inspired by this paper to come up with their own ideas for a better, more proactive approach to a future internet.

Filed Under: 1st amendment, antitrust, free speech, platforms, protocols, technology
Companies: facebook, google

Google Joins Talks In Bid To Salvage T-Mobile Merger

from the frankenstein-competition dept

We recently noted that the DOJ seemed to have shifted its thinking and is now likely to approve T-Mobile's highly problematic $26 billion merger with Sprint. Why? As it stands, not only do such telecom mergers almost always result in significant layoffs (despite what T-Mobile is promising employees), the deal would eliminate one of just four major US wireless competitors, dramatically reducing any incentive to compete on price. So T-Mobile lobbyists have launched a hail Mary pass: they're proposing spinning off a part of the company and potentially selling it to a competitor like Dish Network, creating a new fourth carrier.

The problem: Wall Street doesn't believe the assets Dish will obtain (like prepaid brand Boost Mobile) will be enough to craft a fully viable fourth character. There's also a lot of doubt that Dish Network, with a long history of hoovering up valuable spectrum and then doing absolutely nothing with it, would actually be competent enough to pull such a plan off. Enter Google, which has now also been rumored as a possible dance partner in T-Mobile's gambit to salvage the merger:

"Google is in talks to help create a fourth US wireless carrier, even as Sprint and T-Mobile struggle to get their controversial merger cleared by federal and state authorities, The Post has learned. Alan Mulally, a former chief executive at Ford Motor and a current Alphabet director, has recently been in discussions with satellite TV giant Dish Network about a plan to create a fourth US telecom player, sources said.

The idea is for Alphabet-owned Google and Dish to launch a new wireless giant with the help of assets acquired from T-Mobile, which is now under pressure from the Department of Justice to aid such a project in order to get clearance for its $26 billion merger with Sprint, according to sources close to the situation."

Dish CEO Charlie Ergen has long enjoyed a reputation in telecom for being difficult to strike deals with, so there's still no guarantee this proposal sticks together. Google has also been prone toward inconsistency on the telecom front after an executive sea change resulting in the company largely mothballing its Google Fiber expansion. It's also possible that Google isn't actually all that interested, and the leaks to the Post are intentional on T-Mobile's part to sell the idea that there are alternatives to the far simpler approach: blocking the deal outright.

Whichever dance partners we're talking about, the biggest problem will be regulatory oversight of the creation of this new fourth carrier. Ajit Pai has yet to hold any major company accountable on any subject of substance. Building and sustaining a viable fourth competitor will require some stringent oversight and meaningful penalties should the proposal falter, neither of which are exactly Pai's strong suit. At the end of the day, the simplest way to maintain four competitors would be to block the deal outright and force Sprint to explore solutions outside of the merger process.

Filed Under: antitrust, competition, mergers
Companies: dish, google, sprint, t-mobile

Is 'This Time Different' Concerning Big Internet Dominance?

from the a-question-worth-asking dept

I've made a similar point a few times in the past, but now that the antitrust knives are out for the big tech companies (mainly Google, Facebook, Amazon and Apple), it does seem worth noting just how quickly the tech landscape seems to change. I moved to Silicon Valley 20 years ago. At that time, the "dominant" companies were: Microsoft, Sun, Oracle, Netscape, IBM, SGI, Intel and Yahoo. Those were still the days of "no one gets fired for buying IBM." Google's headquarters today were once SGI's. Facebook now occupies Sun's headquarters (affectionately nicknamed Sun Quentin, for its resemblance to the prison a bit north of here). A decade or so ago, I remember the general refrain about the startup ecosystem was that there were three "dominant" companies in the marketplace that any startup was trying to sell to. The so-called "GYM" companies: Google, Yahoo, Microsoft. Yet, today, all anyone can talk about is "GAFA" (Google, Amazon, Facebook, Apple) or in some versions "FAANG" (add in Netflix).

The tech market is one of disruption. It's a celebrated term around here -- often mocked by outsiders. But dominance has a way of falling. And falling fast. So I appreciate a recent piece by Ryan Bourne at Cato asking some fairly pertinent questions regarding the new antitrust focus on "GAFA."

Almost exactly the same arguments about how “network effects” might make Facebook or Google entrenched monopolies were used against Myspace, Microsoft’s Internet Explorer and AOL’s Instant Messenger. Analysts worried that web managers optimizing sites for IE because of its high use numbers would ossify the browser market in Microsoft’s favor. In the case of AOL, 40 companies wrote to the Federal Communications Commission asking it to make AOL’s network compatible with others. Of course, Myspace was rendered obsolete by Facebook, Internet Explorer by Google Chrome, and AIM by, well, a lot (there are many apps with instant messaging facilities).

But it’s not just network effects. In 2007 Forbes was running articles about how economies of scale for Nokia would act as a barrier to entry for rivals. The higher profits were generating “more money to invest in research and development.” It was said Nokia’s supposed technological superiority meant “no mobile company will ever know more about how people use phones than Nokia.” That year saw the first iPhone launch.

Today, consumer groups wail against Apple’s supposed “monopoly” power with its app store, saying it’s unfair to bundle it into its phone while prohibiting other means of download. Yet similar arguments were made about Apple’s iPods inability to play songs that weren’t downloaded from iTunes. Of course, developments in the music purchase market, mobiles and speaker technology completely unbundled music purchase from listening devices.

None of this is to say that there can't be antitrust concerns or market-power concerns to watch out for with these companies. But, the burden should be on those insisting that the only obvious thing is to "break up" these companies to explain why this time is different, and why no new competitors will be able to really enter and disrupt the legacy players.

When I first came to Silicon Valley, it was just as the antitrust effort against Microsoft was heating up -- and I totally supported it at the time. In retrospect, it's unlikely that case did much at all. There were other forces at work that limited Microsoft's power (though it's still a very big company doing quite well). After working around here for over two decades, though, and seeing just how much this place changes every few years, I've yet to see a convincing case that "this time is different." Indeed, I see plenty of entrepreneurs who are eager to disrupt the big players.

Filed Under: antitrust, big tech, dominance, internet companies, monopolies
Companies: amazon, apple, facebook, google

Trump Thinks That The Government Can And Should Sue Internet Companies Because He Doesn't Like The People Who Work There

from the not-how-it-works-don dept

In a move that will surprise absolutely no one, our President once again blindly and incorrectly lashed out at big internet companies and said that they should be sued for what appears to be the illegal action of having employees who didn't vote for him. I mean, that's not what he said, but that seems to be the only real reasoning behind the argument.

President Trump on Wednesday said the U.S. government “should be suing Google and Facebook and all that,” then wagered that “perhaps we will,” in a new broadside against Silicon Valley at a moment when it already faces heightened antitrust scrutiny in Washington.

Trump did not detail the exact basis for such lawsuits, which he raised after assailing European regulators for their investigations into U.S. tech companies.

So... he's against EU regulators investigating the companies, but he wants to have the DOJ do it? On what basis. Apparently, on the basis of a laughable, out-of-context propaganda video from an organization famous for producing misleading, out-of-context propaganda videos.

In doing so, Trump also swiped at Google, claiming the search and advertising giant is “trying to rig the election.” He then claimed that Twitter has made it “very hard” for users to find and follow him. But Trump did not provide new evidence for his latest allegation that the companies exhibit bias against conservatives, which Google and Twitter long have vehemently denied.

The "rig the election" is one that's been making the rounds this week after a group of people deliberately misrepresented Google's ongoing (and very public) efforts to prevent foreign intervention in the US election. If you think that blocking foreign intervention is "rigging the election," well, then you've got much bigger issues.

As for the claim that Twitter has made it "very hard" for users to find and follow him, he currently has 61.4 million followers -- which appears to make him the twelfth most followed account on the platform. He has more followers than Kim Kardashian. I don't think anyone is making it hard to find or follow him. Or, if Twitter is doing that, please, Twitter, make it just as hard for people to find and follow me on the platform.

Look, I get that Trump and his fans don't like the fact that tech company employees overwhelmingly didn't vote for him. But, that's not any basis for making up lies about them and sending the DOJ after them. There may well be legal and regulatory issues that deserve scrutiny regarding these legal companies, but making up fantasy stories only makes it that much harder to sort out what's legitimate from what's utter nonsense.

Filed Under: antitrust, doj, donald trump, internet companies, social media
Companies: facebook, google, twitter

Dish To Buy Parts of T-Mobile To Save Sprint Merger, But It's Not Likely To Help

from the ill-communication dept

We recently noted that the DOJ seemed to have shifted its thinking and is now likely to approve T-Mobile's highly problematic $25 billion merger with Sprint. Why? As it stands, the merger would eliminate one of just four major US wireless competitors, dramatically reducing any incentive to compete on price and inevitably resulting in layoffs. So T-Mobile lobbyists have launched a hail Mary pass: they're proposing spinning off a part of the company and potentially selling it to a competitor like Dish Network. This would create a new fourth carrier to (theoretically) help offset any potential competitive harm.

That theory gained traction again with yet more reports stating that Dish would buy about $6 billion in T-Mobile and Sprint assets in an attempt to force this new fourth carrier into existence:

"Dish could announce a deal as soon as this week for assets including wireless spectrum and Sprint’s Boost Mobile brand, said the people, who asked to not be identified because the matter isn’t public. The deal hasn’t been finalized and talks could still fall through, said the people.

The potential divestitures are aimed at appeasing the Justice Department, which wants T-Mobile and Sprint to sell enough assets to ensure that the U.S. maintains at least four viable wireless players.

While this is likely going to be played up by the press and loyal T-Mobile politicians as the perfect "solution" to the reduced competition issue the deal creates, that's not true. The assets Dish is buying (Sprint's prepaid brand Boost Mobile) are largely incongruent with actually building a viable fourth carrier, so while this deal might be great for Dish (which has been hoovering up and squatting on spectrum for years with zero penalty) it's not going to accomplish what T-Mobile and the government are going to claim when DOJ approval is announced this week or next.

Wall Street analyst Craig Moffett put it this way in a research note to investors:

"We’re not sure why that deal is sensible for anyone involved. Dish, remember, already has more spectrum than they know what to do with; what they lack is money and ground facilities, and the deal described on Friday wouldn’t deliver either one. Instead, it would make both problems worse. And while Boost would help provide a baseline revenue stream in return for an upfront purchase price, the fit between Boost and Dish is, at best, superficial.

Yes, Boost serves a budget-conscious consumer, as does Dish Network’s satellite business, but Boost is a mostly urban brand and Dish’s satellite business is an increasingly rural one. And, more urgently, Boost’s distribution poses a huge problem. Historically, Boost was heavily dependent on Walmart for retail gross additions, but they’ve since lost that distribution channel. They would also, presumably, lose distribution through Sprint-branded stores (and even if, as a condition of the deal, they didn’t, does anyone think that Sprint/T-Mobile store employees would direct any volume to a spun-off Boost brand?) That would leave Dish with a brand that has a churn rate as high as 5% per month to be spun off with an inadequate distribution front end, and with no realistic path to replace that front end before the subscriber base was, well, gone."

That's a lengthy way of saying the spin off and sale of assets to Dish isn't going to work, and the end product is not going to be an adequate replacement for technically killing off Sprint. The effort is theatrical, and likely to end with just three major competitors anyway.

The other major problem is regulatory accountability and follow through. Creating and maintaining an entirely new viable fourth carrier while ensuring Dish doesn't just squat on spectrum for later sale is going to require some significant regulatory guard rails and FCC oversight. Who exactly is going to shepard this process, Ajit Pai? The same Ajit Pai that has yet to stand up to any major company on any issue of substance? The same Ajit Pai who didn't think any meaningful conditions were required to protect jobs and consumers from the deal's inevitable impact? The same guy who thinks oversight of predatory natural monopolies isn't necessary? Good luck with that.

At the end of the day Dish's involvement will be sold as an amazing solution to the deal's biggest issues. But in reality the simpler, safer, and saner option remains to just block the deal outright. Just like regulators did when they blocked AT&T from buying T-Mobile in 2011, and when Sprint tried the same thing in 2014. A turd is still a turd, even when you put an adorable little hat on it.

Filed Under: antitrust, competition, doj, fcc, mergers, spectrum, wireless
Companies: dish, sprint, t-mobile

Dumbest 'Gotcha' Story Of The Week: Google, Genius And The Copying Of Licensed Lyrics

from the red-handed...-at-what? dept

You may have seen this story in various forms over the weekend, starting with a big Wall Street Journal article (paywall likely) claiming that Genius caught Google "red handed" in copying lyrics from its site. Lots of other articles on the story use the term "red handed" in the title, and you'll understand why in a moment. However, there's a lot of background to go over here -- and while many Google haters are making a big deal out of this news, after going through the details, it seems like (mostly) a completely over-hyped, ridiculous story.

First, a little background: for pretty much the entire existence of this site, we've written about legal disputes concerning lyrics sites -- going all the way back to a story in 2000 about LyricFind (remember that name?) preemptively shutting itself down to try to work out "licensing" deals for the copyright on lyrics. Over the years, publishers have routinely freaked out and demanded money from lyrics sites. As we've pointed out over and over again, it was never clear how this made any sense at all -- especially on crowd sourced lyrics sites. It's not as though lyrics sites are taking away from the sales of the music -- if anything, they're the kinds of thing that connects people more deeply to the music and would help improve other aspects of the music business ecosystem.

Over time, however, more and more sites realized that it was just easier to pay up than fight it out in court. One of those sites was Genius -- originally "RapGenius" -- which was called out by the National Music Publisher's Association as one of the "worst" infringers out there a few years back. Genius eventually caved in and agreed to license lyrics, despite incredibly strong fair use claims (since the whole point of Genius was to allow for annotation and commentary).

However, in this latest case, it's now Genius that's complaining about someone else copying its content. Except... it's not Genius' content. This is what makes the story bizarre -- which we'll get to in a moment. However, first, it is worth highlighting the somewhat fun way in which Genius apparently "caught" Google using content from the Genius site as its source material. Basically, Genius hid a code in whether it used "straight" apostrophes or curly "smart" apostrophes:

Starting around 2016, Genius said, the company made a subtle change to some of the songs on its website, alternating the lyrics’ apostrophes between straight and curly single-quote marks in exactly the same sequence for every song.

When the two types of apostrophes were converted to the dots and dashes used in Morse code, they spelled out the words “Red Handed.”

The WSJ shows the following example from a snippet of lyrics from the Alessia Cara song "Not Today."

So, this secret bit of encoding is kinda clever (as is the use of Morse code and the message it spells out). But, despite everyone freaking out over this, there's a pretty big question? Does this even matter? And while CBS stupidly and incorrectly claims that Genius is suing Google over this, there's no indication of any actual lawsuit yet, and it's not clear what they could actually sue over.

First off, despite the headline accusations against Google, Google (1) licenses lyrics itself, and (2) gets them from LyricFind (remember them?) with whom it signed a big deal a few years back. This raises a few different issues.

First, as law professor Annemarie Briday noted, since both Genius and Google license the lyrics, it doesn't really matter where they're sourced from, as regards to copyright law:

Indeed, in many ways, the situation reminds me of an important Supreme Court ruling from 1991 in Feist v. Rural Telephone Services. In that case, you had a telephone company that inserted fictitious residents and phone numbers into its phone books to catch anyone copying straight from its own directory. And, indeed, it caught Feist ("red handed") copying directly from its phone books, by finding the fictitious entries in Feist's directory. However, as the Supreme Court noted, there was no copyright interest in phone numbers, which were factual information. This was the case that explicitly rejected the "sweat of the brow" theory of copyright, saying that you only get copyright in new creative works.

This situation is not identical, because there is clearly a copyright interest in the lyrics, but since both parties (actually, all three parties, if we include LyricFind) have properly licensed the works, then we're in the same basic legal framework. Anyone who is allowed to post these lyrics can and should be able to get them from anywhere.

The second reason why this story is likely all hype and no substance is the role of LyricFind. Google basically said "hey, we just get stuff from our partners, and don't scrape, so if there's a problem... it's from our partners." From the WSJ:

In a written statement, Google said the lyrics on its site, which pop up in little search-result squares called “information panels,” are licensed from partners, not created by Google.

“We take data quality and creator rights very seriously and hold our licensing partners accountable to the terms of our agreement,” Google said.

After this article was published online Sunday, Google issued a second statement to say it was investigating the issue raised by Genius and would terminate its agreements with partners who were “not upholding good practices.”

LyricFind separately denied copying from Genius, but that seems like a more likely culprit. In its own blog post, LyricFind says that it supplied the lyrics for Google, but denies copying from Genius, and says that the WSJ got a bunch of facts wrong:

The lyrics in question were provided to Google by LyricFind, as was confirmed to WSJ prior to publication. Google licenses lyrics content from music publishers (the rightful owner of the lyrics) and from LyricFind. To accuse them of any wrongdoing is extremely misleading.

LyricFind invests heavily in a global content team to build its database. That content team will often start their process with a copy of the lyric from numerous sources (including direct from artists, publishers, and songwriters), and then proceed to stream, correct, and synchronize that data. Most content our team starts with requires significant corrections before it goes live in our database.

Some time ago, Ben Gross from Genius notified LyricFind that they believed they were seeing Genius lyrics in LyricFind’s database. As a courtesy to Genius, our content team was instructed not to consult Genius as a source. Recently, Genius raised the issue again and provided a few examples. All of those examples were also available on many other lyric sites and services, raising the possibility that our team unknowingly sourced Genius lyrics from another location.

As a result, LyricFind offered to remove any lyrics Genius felt had originated from them, even though we did not source them from Genius’ site. Genius declined to respond to that offer. Despite that, our team is currently investigating the content in our database and removing any lyrics that seem to have originated from Genius.

The company also pointed out that Genius has only identified approximately 100 songs that were copied, and it has 1.5 million in its database, suggesting that it's not in the business of regularly copying from Genius. But, again, it's not clear why it would really matter that much either way, since everyone is licensed.

To put it another way: Genius' license to the lyrics does not grant it any other rights beyond being able to display those lyrics itself. It has no exclusivity. It doesn't hold the copyright. And, no, changing a few apostrophes is unlikely to meet the creative bar to get a new derivative copyright. So, there's no additional right that Genius has to stop another licensee from using its version of the lyrics.

There's a separate issue here worth noting as well: all of this demonstrates just how idiotic the whole "licensing of lyrics" business is -- considering that what everyone here is admitting is that even when they license lyrics, they're making it up much of the time. Specifically, what people are noting is that they license lyrics from the publishers, but the publishers themselves rarely even have or know the lyrics they're licensing, so lyrics sites try to figure them out themselves and "create" the lyrics file which may or may not be accurate. Indeed, the WSJ reports that this is why Genius first became suspicious of Google -- because on one particularly difficult to understand track, it had reached out to the musician directly for the lyrics, and then was surprised to see the same version on Google.

But... if the publishers don't even know they lyrics they're licensing, then what the fuck are they licensing in the first place? The right to try to decipher the lyrics that they supposedly hold a copyright on? Really?

One music guy suggested that a different "source" of the "problem" (if you do consider it a problem), is that since the publishers have no idea what the lyrics are anyway, THEY might be sourcing the lyrics themselves from Genius and then passing them along to Genius.

In short, the whole lyrics/copyright space remains a clusterfuck. But it's difficult to see how it's at all Google's fault.

Some people have raised a few other possible legal arguments that have at least somewhat more merit than any copyright claim, but still strike me as incredibly weak. First, there's the argument that this kind of scraping violates Genius' terms of service. Of course, that opens a Pandora's box of how enforceable click through terms of service actually are (though, many courts have found them binding). But then it will matter quite a bit as to whether or not it was actually Google, LyricFind or someone else who copied the content from Genius. And, given everything discussed above, tracking that down seems almost impossible -- and given the low number of "copied" lyrics found, it certainly doesn't appear to be a major automated scraping situation.

The other possibility that a few people have suggested, is that there are competition/antitrust arguments to be made against Google here. That argument boils down to Google using its size and position to abuse that position to harm the competitor Genius. And... maybe? There was a similar complaint a few years ago about Google apparently sinking a site that tried to estimate the "net worth" of celebrities, by posting that info in a Google "answer box" and not having people click through to the celebrity site.

But that argument also strikes me as incredibly weak for multiple reasons. First, if Google putting the info from your site in an answer box destroys all your traffic and your business, then, um, you didn't have very much of a business in the first place, and it's not clear that your site really adds that much value. At the very least, it suggests that your business is not that defensible. In the case of Genius, the site has long insisted that its real value was in the annotations, not just the lyrics. But now it's complaining that showing just the lyrics (which tons of other sites also have) is somehow removing traffic? That's... weak. Second, going by consumer benefit alone, Google has a pretty strong argument that displaying this information (and again, with lyrics, it's all properly licensed) is a lot better for the users than shunting them off to a third party site. And, third, as evidence above, it doesn't appear that Google actually did anything here at all. Other than properly licensing lyrics via LyricFind. It's very difficult to see how there's any antitrust issue with that.

In the end, this is an interesting story -- especially in highlighting how Google was "caught" -- but it's hard to see what the actual legal problem is here. There are plenty of reasons to be concerned about Google, but the fact that its properly licensed lyrics matches someone else's properly licensed lyrics, doesn't seem like one of them.

Filed Under: antitrust, competition, copyright, licensing, lyrics, scraping, terms of service
Companies: genius, google, lyricfind

There Are Lots Of Ways To Punish Big Tech Companies, But Only A Few Will Actually Help Improve The Internet

from the this-is-important dept

There are many reasonable complaints making the rounds these days about the big internet companies, and many questions about what should be done. Unfortunately, too much of the thinking around this can be summarized as "these companies are bad, we should punish them, any punishment therefore is good." This is dangerous thinking. I tend to agree with Benedict Evans who noted that there's a similarity between calls to break up big tech companies and Brexit in the UK:

I've pointed out a few times now that most calls to break up or regulate these companies fail to explain how these plansactually solve the problems people highlight. Companies are callous about our privacy? Will regulating them or breaking them up actually stop that? The GDPR has proven otherwise already. The companies algorithms recommend bad things? How will breaking them up stop that?

Too much of the thinking seems to just be focused on "company bad, must punish" and don't get much beyond that.

And that's a pretty big problem, because many of the ideas being passed around could ultimately end up harming the wider internet much more than they end up damaging the few big companies anyway. We've already seen that with the GDPR, which has served to further entrench the giants. The same will almost certainly be true when the EU Copyright Directive goes into effect, since the entire plan is designed to entrench the giants so that the big entertainment companies can negotiate new licensing deals with them.

In a new piece for the Economist, Cory Doctorow warns that many of these attempts to "harm" the big internet companies through regulation will actually do much more harm to the wider internet, while making the biggest companies stronger.

The past 12 months have seen a blizzard of new internet regulations that, ironically, have done more to enshrine Big Tech’s dominance than the decades of lax antitrust enforcement that preceded them. This will have grave consequences for privacy, free expression and safety.

He talks about the GDPR, FOSTA, the EU Copyright Directive and various "terrorist" and "online harms" regulatory proposals -- all of which end up making the big internet companies more powerful in the name of "regulating/punishing" them. It's worth reading Cory's take on all those laws, but he summarizes the key point here:

Creating state-like duties for the big tech platforms imposes short-term pain on their shareholders in exchange for long-term gain. Shaving a few hundred million dollars off a company's quarterly earnings to pay for compliance is a bargain in exchange for a world in which they need not fear a rival growing large enough to compete with them. Google can stop looking over its shoulder for the next company that will do to it what it did to Yahoo, and Facebook can stop watching for someone ready to cast it in the role of MySpace, in the next social media upheaval.

These duties can only be performed by the biggest companies, which all-but forecloses on the possibility of breaking up Big Tech. Once it has been knighted to serve as an arm of the state, Big Tech cannot be cut down to size if it is to perform those duties.

Cory is much more engaged in the idea of breaking up the big tech companies than I am (we recently debated the topic on the Techdirt podcast), but his point here is valid. So much of the "punish big tech" movement is at odds with other parts of the "punish big tech" movement. That's because there is no coherent strategy here -- it's just "punish big tech."

Cory's article suggests that any move towards antitrust should include mandating interoperability in an effort to build up competition:

One exciting possibility is to create an absolute legal defence for companies that make "interoperable" products that plug into the dominant companies' offerings, from third-party printer ink to unauthorised Facebook readers that slurp up all the messages waiting for you there and filter them to your specifications, not Mark Zuckerberg's. This interoperability defence would have to shield digital toolsmiths from all manner of claims: tortious interference, bypassing copyright locks, patent infringement and, of course, violating terms of service.

Interoperability is a competitive lever that is crying to be used, hard. After all, the problem with YouTube isn't that it makes a lot of interesting videos available—it is that it uses search and suggestion filters that lead viewers into hateful, extreme bubbles. The problem with Facebook isn't that they have made a place where all your friends can be found—it is that it tries to "maximise engagement" by poisoning your interactions with inflammatory or hoax material.

This actually reminds me of another similar piece, written last month by Josh Constine at TechCrunch, arguing that the FTC should force Facebook to mandate "friend portability" for Facebook:

I don’t expect the FTC to launch its own “Fedbook” social network. But what it can do is pave an escape route from Facebook so worthy alternatives become viable options. That’s why the FTC must require Facebook to offer truly interoperable data portability for the social graph.

In other words, the government should pass regulations forcing Facebook to let you export your friend list to other social networks in a privacy-safe way. This would allow you to connect with or follow those people elsewhere so you could leave Facebook without losing touch with your friends. The increased threat of people ditching Facebook for competitors would create a much stronger incentive to protect users and society.

Both Cory and Josh are making an important point: part of the reason why these platforms have become so big and so powerful is because there is real friction in leaving -- not because it's hard to just start using another platform, but because if all the other users are still on that other platform, it's meaningless if just you switch. Of course, history shows us that over time, many people will migrate over to new platforms. And you know this if you've been on the internet for the past two decades. Remember the 2000s when you used AIM to communicate with your friends while chatting with folks on MySpace? Over time, folks moved.

But making platforms more open -- forcing "interoperability" -- is certainly one way forward. I'd actually argue it does not go far enough. I've argued an even better solution is not just about forced interoperability, but moving to a world of protocols instead of platforms. In such a world, interoperability would be standard, but would also be just one piece of the puzzle for making the world more dynamic and competitive. If we relied on more open platforms, then third parties could build all sorts of new services, from better front ends, to better features and tools, and users could choose which implementation(s) they wanted to use, making switching from any particular service provider much easier -- especially if that provider did anything to hurt user trust. Interoperability would be one step in that direction, but only one step.

It's quite reasonable that people are concerned about big tech these days, but if we're going to have a reasonable solution that doesn't create wider negative consequences for the internet, we should be thinking much more carefully about the various proposals on the table. A simple "punish big tech because big tech is bad" may get people riled up, but the chances for negative consequences are too great to ignore.

Filed Under: antitrust, big tech, competition, copyright, gdpr, interoperability, punishment, regulations
Companies: facebook, google

Court Says Section 230 Shields Twitter From Revenge Porn Bro's Stupid Lawsuit

from the guess-it's-back-to-running-laughable-political-campaigns dept

Former revenge porn extortionist and current pro se litigant, Craig Brittain, is one severely-narrowed complaint away from having his lawsuit against Twitter tossed. Brittain sued Twitter over the deletion of several accounts, including those he had whipped up for his Senate run.

The court's first pass at the lawsuit moved it to California, a venue shift Brittain explicitly agreed to each time he created another alt account. Terms of service say suing Twitter means suing in California, even if you're an Arizonan Senate hopeful with a closet that contains nothing but skeletons.

Contrary to Brittain's fervent and litigious belief, there's nothing illegal about deleting Craig Brittain's multiple Twitter accounts. Brittain's lawsuit tried to make it possible by treating Twitter as both a provider and a publisher, depending of which description worked out better for his arguments. The court decides to let Brittain have it both ways -- and lose both ways. (h/t Adam Steinbaugh)

As a service provider, Twitter cannot be held liable for third party content. It can also remove accounts without losing this immunity. Since this isn't about the removal of content, but rather the removal of accounts, Brittain tried to argue Section 230 immunity can't protect Twitter from this lawsuit because removing accounts (and their content) is an editorial activity. The court points out this has zero effect on Section 230 protections. From the decision [PDF]:

Under the CDA, a publisher’s activity generally “involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content.” Id. at 1102. “[R]emoving content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove.” Id. at 1103. In other words, “any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under [CDA] section 230.” Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1170–71 (9th Cir. 2008) (en banc).

Publisher or provider, it doesn't matter. Suing a social media site for deleting accounts is a non-starter.

The Brittain Accounts qualify as “information provided by another information content provider.” Brittain expressly acknowledges that he, not Twitter, created and operated the accounts See Barnes, 570 F.3d at 1102 & n.6 (“The statute also tells us that this term ‘means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.’”) (quoting 47 U.S.C. § 230(f)(3)). Accordingly, the Court finds that all but Brittain’s antitrust claim are barred by Section 230(c)(1) of the CDA. Because plaintiff cannot cure this defect, the Court DISMISSES these claims with prejudice.

All Brittain can do now is file a complaint limited to the anti-trust violations he alleges. But the court's brief analysis of the single surviving claim suggests this will be a waste of everyone's time. The court says it's unlikely Brittain can even prove standing, since his claim is pretty much limited to him losing followers when his accounts were suspended or deleted. Brittain's lawsuit doesn't actually allege Twitter did anything illegal in terms of competitive practices.

Although Brittain’s complaint does not suggest that plaintiffs could allege an antitrust cause of action, out of an abundance of caution, the Court affords Brittain leave to amend with respect to this claim and DISMISSES Brittain’s antitrust claim without prejudice.

[...]

While the Court can understand the frustration which may occur if a person’s Twitter account is suspended, unless a legal cause of action can be articulated, a lawsuit cannot be sustained. Nor is the person entitled to discovery on the general issues upon which the complaint is based, unless a legal claim can be stated. Here, the complaint is fundamentally flawed.

The court also points out Brittain can't sue on behalf of his Brittain For Senate campaign committee. This committee of one must seek its own legal representation, which cannot be a pro se litigant named Craig Brittain. This seems unlikely to happen, so this additional will be removed from a lawsuit the only plaintiff remaining (Craig Brittain) is destined to lose.

Yeah, it sucks when a platform decides it no longer wants your free business. But it's not illegal, no matter how many of your hastily-erected Senate campaign committee Twitter accounts are removed by a private company.

Filed Under: antitrust, brittain for senate, cda 230, content moderation, craig brittain, section 230
Companies: twitter