NY Times Publishes A Second, Blatantly Incorrect, Trashing Of Section 230, A Day After Its First Incorrect Article

from the what-is-wrong-with-the-times? dept

Last week we wrote about the NY Times having to issue a whopper of a correction on a giant front page of the Business Section, totally false claim, saying that Section 230 "protected hate speech" online -- which they later had to edit to note that it was actually the 1st Amendment that protected such speech (and the article leaves out that it's actually Section 230 that allows websites to remove hate speech). Coming from a paper that, just weeks earlier, had published an editorial mocking politicians for getting 230 wrong, this was kind of embarrassing.

Even more embarrassing, though, was the day after the NY Times had to totally correct that false article, they ran another blatantly wrong op-ed about Section 230, this one published by Jonathan Taplin, who two years previously had published another op-ed at the NY Times that completely fabricated a bunch of blatant lies about how YouTube and Google operate. You would think that would be enough for the NY Times to maybe think twice about having him publish another op-ed, especially about Section 230 a day after the paper got called out for getting the Constitution wrong. But, nope. Taplin got to publish his anti-Section 230 op ed with no problems, until the NY Times felt the need to issue a correction on that one too.

An earlier version of this article misstated the law containing a provision providing safe haven to social media platforms. It is the Communications Decency Act, not the Digital Millennium Copyright Act.

Taplin, if you don't recall, is an old-school movie and music producer, who a few years ago started getting renewed attention by blaming Google for basically all the ills in the world. He constantly popped up with facts-optional arguments, that seem to get lots of attention because attacking Google is the in-thing, whether or not it's based on any facts.

Here, again, Taplin gets basically all the facts wrong. While he purports to be an experts on copyright law (a dubious claim in itself), since everyone's focused on Section 230, he decided to jump in and pretend to be an expert on that (though, as the correction shows, he confused CDA 230's protections with the DMCA 512 safe harbors, which are quite different). Even post correction, Taplin's article is just... hilariously wrong.

After the El Paso massacre, the 8chan website briefly went offline when Cloudflare, the network provider, banned it. But it was only a matter of time before someone else agreed to support the site: By Tuesday morning, 8chan was back online, spewing a toxic mix of hatred, violence and QAnon conspiracies. Message boards like 8chan aren’t the only place where these things are spread: In March, when there were two mass shootings at mosques in Christchurch, New Zealand, the shootings were live-streamed on Facebook and then viewed millions of times on YouTube.

Of course, what Taplin leaves out is the rather Herculean efforts that Facebook and YouTube went through to block that video -- while also trying not to block legitimate news reports about the shooting. And you know what made that effort possible in the first place? Section 230 of the Communications Decency Act. But, to Taplin, Section 230 is to blame.

Though it may seem that there is little that platforms and politicians can do to stop the spread of online hatred, a great deal could be accomplished with one simple tweak to the existing Communications Decency Act: revise the safe harbor provisions of the law.

Well, here's the thing: The Communications Decency Act does not have any safe harbor provisions. This is the fundamental problem in the NY Times allowing Taplin to write his facts-optional nonsense in which he confused the DMCA 512 (which does have safe harbors) with CDA 230 (which does not) -- and then pretending that merely replacing DMCA 512 with CDA 230 fixes things. A safe harbor, such as what's found in the DMCA, says that if you take certain actions, you are protected. CDA 230 requires no such thing -- it just says that internet service providers cannot be held liable for third party content or for moderation choices.

And, again, it's the protections of 230 that made the actions that Facebook and YouTube took in response to the Christchurch shooting video possible in the first place. But, Taplin's got a beef with these companies, and he's going to scratch that itch, no matter how nonsensical.

A safe harbor provision of a statute or a regulation specifies that certain conduct will be deemed not to violate a given rule. For social media platforms like 8chan, Facebook and YouTube, the most important of these is Section 230 of the Communications Decency Act, which states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

That's not a safe harbor.

the second one should be: When Johnson & Johnson removed all the Tylenol from American stores in the wake of a poisoning scandal, it did so because of the liability it would face if anyone got hurt. But 8chan, Reddit, Facebook and YouTube are totally protected from being sued for content on their networks because of this unique set of laws created at the beginning of the internet.

What a weird and dumb analogy. Johnson & Johnson faced liability because its products were poisoned. Products where it controlled the manufacturing and the supply chain. That is not the case for the service providers Taplin names. Besides, as noted in the correction to the other NY Times article, the fucking 1st Amendment protects that content. But, of course, Taplin can't actually admit that he's really trying to blame the 1st Amendment.

The safe harbor laws were created for what is known as passive (or neutral) intermediaries.

This is a lie. This is such a lie that the NY Times itself called it out as a lie just a couple weeks ago. The safe harbor was not created for "passive (or neutral) intermediaries." Literally both of the authors of CDA 230 -- Chris Cox and Ron Wyden -- have directly said this is not true. Section 230 was created in direct response to the Stratton Oakmont v. Prodigy ruling, in which a judge said that because Prodigy heavily moderated its forums to keep them "family friendly," it took on liability for any content it left up. Cox and Wyden have both made it clear that the entire point of 230 was to enable sites to moderate content however they saw fit, to encourage the ability to create "family friendly" environments online.

In other words, it was created, explicitly, to enable non-passive intermediaries. Taplin is lying. I'd say he could just be misinformed, but this information has been out there long enough, and Taplin has been so wrong, so often, that it's difficult to see how he could be merely misinformed. At some point you have to wonder if these constant misrepresentations are intentional.

Verizon, for example, is a passive intermediary platform: It makes no attempt to edit or alter the bits flowing through its fiber optic cables. Facebook and YouTube, however, are active intermediaries; they present you with content different from what they present to me. They filter pornography and jihadist videos off their networks using artificial intelligence. As such, they should not be shielded from liability by safe harbor laws in the same way that Verizon is shielded.

This is also bizarre. Given what we just said above, without a CDA 230, then Facebook and YouTube would be incentivized not to filter pornography or jihadist videos. This entire piece is internally inconsistent. Taplin first says that because of 230 these sites don't have incentive to moderate (even though they do) and then says that because they moderate, they should lose the protections that make it possible to moderate.

How the hell did the NY Times think it was appropriate to publish this utter nonsense?

Even though Facebook was able to use A.I. to block 90 percent of the Christchurch streams after it identified the video, last year Mark Zuckerberg testified to Congress that it might take five to 10 years to perfect these tools. But society cannot wait five to 10 years — we need to stop these videos now, and banning toxic content must become the highest priority at 8chan, Reddit, Facebook and YouTube.

Dude. In the previous paragraph you argued that these sites shouldn't get 230 protections because they moderate. Now you're saying that they shouldn't get them unless they automatically stop all bad stuff? From paragraph to paragraph the argument changes, unless you consider "Facebook and YouTube are evil" is the only argument Taplin can make.

Some may argue that deciding what counts as toxic video content is a slippery slope toward censorship. However, for the past 75 years, since the first television broadcasts, the Federal Communications Commission has been able to regulate offensive content on television.

This is not a serious take. This is something someone with literally zero knowledge of how any of this works would make. It does not deserve to be placed on the op-ed pages of the NY Times and is a total embarrassment. First off, the FCC only has a mandate over the airwaves, because they are a (somewhat) limited resource, that the US government handed out for the public benefit -- and, as part of that exchange, there was a promise that those who received that spectrum, would not use it for obscenity. Second, the idea that the FCC has ever been able to successfully regulate "offensive" content on TV is laughable and shows a startling lack of understanding of the history of the FCC and its attempts to respond to claims of offensive content on TV. Third, there are strong arguments that the FCC's determinations on offensive content do, in fact, violate the 1st Amendment, and are very much part of a slippery slope towards censorship.

Finally, it's quite stunning to see a Hollywood producer coming out and supporting the FCC's attempts to regulate content on the airwaves. That used to be the kind of thing that Hollywood -- back decades ago when it actually was a force for free speech -- used to fight against.

I believe we can all agree that mass murder, faked videos and pornography should not be broadcast — not by cable news providers, and certainly not by Facebook and YouTube.

Then you better get to work repealing the 1st Amendment. Because that's what protects this content.

Since broadcasters do not have the protection of “safe harbor,” they engage in a certain level of self-regulation, to avoid being sued.

No, that's not what's going on at all. Broadcasters pick and choose what limited content goes online, because it's not an open platform that anyone can post to. They self-regulate because they are aiming for whatever content they put out to reach a mass audience because they can only produce so much content. It's not because they're afraid of the FCC or because they don't have CDA 230 to protect them.

And there is no reason to believe that the largest corporations in the world — Google, Apple, Facebook and Amazon — would behave differently from CBS, Fox, NBC or ABC.

Other than that this is an apples to orangutans comparison. CBS, Fox, NBC and ABC pick and choose exactly what content they broadcast. They have 24 hours a day to fill, and that's it. The other services are open platforms where anyone can post anything. And that's an entirely different situation. That Taplin seems to think these are comparable frankly does not speak well of Taplin's understanding of anything related to the internet.

In the past, Google and Facebook have shown that they can pivot quickly and that they already have the technology to keep certain content off their platforms. There is almost no pornography on Facebook or YouTube because of sophisticated tools that search for and prevent such uploads. And since 2017, both companies have actively removed jihadist videos. But it took the right incentives to get them to do both of those things.

Note that it did not take a change to CDA 230 to make Facebook and YouTube decide to remove jihadist videos. He's also wrong. This started way before 2017. Also, in taking down "jihadist videos," Facebook and YouTube have also been deleting and hiding evidence of war crimes. So, hey, if Taplin's cool with deleting evidence of war crimes, good on him. But some of us can recognize that there are serious tradeoffs to decisions that some people erroneously think are easy calls.

Changing the safe harbor laws so that social media platforms are held accountable for the content their users post would incentivize Facebook and YouTube to take things like the deep-fake video of Nancy Pelosi and the Christchurch shooting videos more seriously.

Except that both of those videos are protected by the 1st Amendment. So, no, it wouldn't create liability for those platforms. Indeed, creating such liability would create incentives for platforms to bury their heads and not learn of such videos, a la the Stratton Oakmont ruling.

In the wake of the Christchurch shootings, Prime Minister Jacinda Ardern of New Zealand remarked about the social networks: “They are the publisher, not the postman. There cannot be a case of all profit and no responsibility.”

A quip is not reality. Again, even Taplin admitted in his piece that Facebook blocked the vast majority of those videos. To then pretend that they don't block these videos because of a profit motive is... nonsensical.

In the end though, Taplin is going to Taplin. The real question is why would the NY Times allow this blatant joke of an op-ed to be published in the first place? Especially after Taplin's previous op-ed was filled with similar nonsense, which it got called out for, and the Times itself got mocked for misunderstanding 230 just a week after its own editorial pages mocked politicians for misunderstanding 230? The NY Times should admit that publishing Taplin was a mistake. But it won't, because it's the NY Times.

Filed Under: cda 230, dmca 512, jonathan taplin, misleading, section 230
Companies: ny times

Boston Globe Posts Hilarious Fact-Challenged Interview About Regulating Google, Without Any Acknowledgement Of Errors

from the and-we-wonder-why-news-is-failing dept

Warning: this article will discuss a bunch of nonsense being said in a major American newspaper about Google. I fully expect that the usual people will claim that I am writing this because I always support Google -- which would be an interesting point if true -- but of course it is not. I regularly criticize Google for a variety sketchy practices. However, what this story is really about is why the Boston Globe would publish, without fact checking, a bunch of complete and utter nonsense.

The Boston Globe recently put together an entire issue about "Big Tech" and what to do about it. I'd link to it, but for some reason when I click on it, the Boston Globe is now telling me it no longer exists -- which, maybe, suggests that the Boston Globe should do a little more "tech" work itself. However, a few folks sent in this fun interview with noted Google/Facebook hater Jonathan Taplin. Now, we've had our run-ins with Taplin in the past -- almost always to correct a whole bunch of factual errors that he makes in attacking internet companies. And, it appears that we need to do this again.

Of course, you would think that the Boston Globe might have done this for us, seeing as they're a "newspaper" and all. Rather than just printing the words verbatim of someone who is going to say things that are both false and ridiculous, why not fact check your own damn interview? Instead, it appears that the Globe decided "let's find someone to say mean things about Google" and turned up Taplin... and then no one at the esteemed Globe decided "gee, maybe we should check to see if he actually knows what he's talking about or if he's full of shit." Instead, they just ran the interview, and people who read it without knowing that Taplin is laughably wrong won't find out about it unless they come here. But... let's dig in.

What would smart regulation look like?

You start with fairly rigorous privacy regulations where you have the ability to opt out of data collection from Google. Then you look at something like a modification of the part of the Digital Millennium Copyright Act, which is what is known as safe harbor. Google and Facebook and Twitter operate under a very unique set of legal regimes that no other company gets to benefit from, which is that no one can sue them for doing anything wrong.

Ability to opt-out of data collection -- fair enough. To some extent that's already possible if you know what you're doing, but it would be good if Google/Facebook made that easier. Honestly, that's not going to actually have much of an impact really. I still think the real solution to the dominance of Google/Facebook is to enable more competition that can provide better services that can help limit the power of those guys. But Taplin's suggestion really seems to be going in the other direction, seeking to lock in their power, while complaining about them.

The "modification" of the DMCA, for example, would almost certainly lock in Google and Facebook and make it nearly impossible for competitors to step up. Also, the DMCA is not "known as safe harbor." The DMCA -- a law that was almost universally pushed by the record labels -- is a law that updated copyright law in a number of ways, including giving copyright holders the power to censor on the internet, without any due process or judicial review of whether or not infringement had taken place. There is a small part of it, within Section 512, that includes a very limited safe harbor, that says that while actual infringers are still liable for infringement, the internet platforms they use are not liable if they follow a bunch of rules, including removing the content expeditiously and kicking people off their platform for repeat infringement.

The idea that "Google and Facebook and Twitter operate under a very unique set of legal regimes that no other company gets to benefit from" is complete and utter nonsense, and the Boston Globe's Alex Kingsbury should have pushed back on it. The Copyright Office's database of DMCA registered agents includes nearly 9,000 companies (including ours!), because the DMCA's 512 safe harbors apply to any internet platform who registers. Google, Facebook and Twitter don't get special treatment.

Furthermore, as a new report recently showed, taking away such safe harbors would do more to entrench the power of Google, Facebook and Twitter since all three companies can deal with such liability, while lots of smaller companies and upstarts cannot. It boggles the mind that the Boston Globe let Taplin say something so obviously false without challenging him.

And, we haven't even gotten to the second half of that sentence, which is the bizarre and simply false claim that the DMCA's Section 512 means that "no one can sue them for doing anything wrong." Again, this is just factually incorrect, and a good journalist would challenge someone for making such a blatantly false claim. The DMCA's 512 does not, in any way, stop anyone from suing anyone "for doing anything wrong." That's ridiculous. The DMCA's 512 says that a copyright holder will be barred from suing a platform for copyright infringement if a user (not the platform) infringes on copyright and when notified of that alleged infringement, the platform expeditiously removes that content. In addition to that, thanks to various court rulings, the DMCA's safe harbors are limited in other ways, including that the platforms cannot encourage their use for infringement and they must have implemented repeat infringer policies. No where in any of that does it say that platforms can't be sued for doing anything wrong.

If the platform does something wrong, they absolutely can be sued. It's simply a fantasy interpretation of the DMCA to pretend otherwise. Why didn't the Boston Globe point out these errors? I have no idea, but they let the interview and its nonsense continue.

In other words, they have complete liability protection from being sued for any of the content that is on their services. That is totally unique. Obviously newspapers doesn’t get that protection. And of course also [tech giants] have other advantages over all other corporations; all of the labor that users put in is basically free. Most of us work an hour a day for Google or Facebook improving their services, and we don’t get anything for that other than just services.

Again, they do not have "complete liability protection from being sued for any content that is on their services." Anything they post themselves, they are still liable for. Anything that a user posts on its platform, if the platform does not comply with DMCA 512, the platform can still be liable for. All DMCA 512 is saying is that they can be liable for a small sliver of content if they fail to follow the rules set out in the law that was pushed for heavily by the recording industry.

Next up, the claim that "obviously newspapers don't get that protection" is preposterous. Of course they do. A quick search of the Copyright Office database shows registrations by tons of newspaper companies, including the Chicago Tribune, the Daily News, USA Today, the Las Vegas Review-Journal, the LA Times, the Baltimore Sun, the Chicago Sun-Times, the Albany Times Union, the NY Times, the Times Herald, the Times Picayune, the Washington Times, the Post Standard, the Palm Beach Post, the Cincinnati Post, the Kentucky Post, the Seattle Post-Intelligencer, the NY Post, the St. Louis Post-Dispatch, the Washington Post, Ann Arbor News, the Albany Business News, Reno News & Review, the Dayton Daily News, Springfiled News Sun, the Des Moines Register, the Cincinnati Enquirer, the Branson News Leader, the Bergen News, the Pennysaver News, the News-Times, the New Canaan News, Orange County News, San Antonio News-Express, the National Law Journal, the Williamsburg Journal Tribune, the Wall Street Journal, the Jacksonville Journal-Courier, the Lafayette Journal-Courier, the Oregon Statesman Journal, the Daily Journal and on and on and on. Literally I just got tired of writing down names. There are a lot more.

Notably missing? As far as I can tell, the Boston Globe has not registered a DMCA agent. Odd that.

But, back to the point: yes, newspapers get the same damn protection. There is nothing special about Google, Facebook and Twitter. And by now Taplin must know this. So should the Boston Globe.

Ah, but perhaps -- you'll argue -- he means that the paper versions don't get the same protection, while the internet sites do. And, you'd still be wrong. All the DMCA 512 says is that you don't get to put liability on a third party who had no say in the content posted. With your normal print newspaper that's not an issue because a newspaper is not a user-generated content thing. It has an editor who is choosing what's in there. That's not true of online websites. And that's why we need a safe harbor like the DMCA's, otherwise people stupidly blame a platform for actions of their users.

And let's not forget -- because this is important -- anything a website does to directly encourage infringement would take away those safe harbors, a la the Grokster ruling in the Supreme Court, which said you lose those safe harbors if you're inducing infringing. In other words, basically every claim made by Taplin here is wrong. Why does the Boston Globe challenge none of them? What kind of interview is this?

And we're just on the first question. Let's move on.

What would eliminating the “safe harbor” provision in the Digital Millennium Copyright Act mean?

YouTube wouldn’t be able to post 44,000 ISIS videos and sell ads for them.

Wait, what? Once again, there's so much wrong in just this one sentence that it's almost criminal that the Boston Globe's reporter doesn't say something. Let's start with this one first: changing copyright law to get rid of a safe harbor will stop YouTube from posting ISIS videos? What about copyright law has any impact on ISIS videos one way or the other? Absolutely nothing. Even assuming that ISIS is somehow violating someone's copyright in their videos (which, seems unlikely?) what does that have to do with anything?

Second, YouTube is not posting any ISIS videos. YouTube is not posting any videos. Users of YouTube are posting videos. That's the whole point of the safe harbors. That it's users doing the uploading and not the platform. And the point of the DMCA safe harbor is to clarify the common sense point that you don't blame the tool for the user's actions. You don't blame Ford because someone drove a Ford as a getaway car in a bank robbery. You don't blame AT&T when someone calls in a bomb threat.

Third, YouTube has banned ISIS videos (and any terrorist propaganda videos) going back a decade. Literally back to 2008. That's when YouTube stopped allowing videos from terrorist organizations. How could Taplin not know this? How could the Boston Globe not know this. Over the years, YouTube has even built new algorithms designed to automatically spot "extremist" content and block it (how well that works is another question). Indeed, YouTube is so aggressive in taking down such videos that it's been known to also take down the videos of humanitarian groups documenting war crimes by terrorists.

Finally, YouTube has long refused to put ads on anything deemed controversial content. Also, it won't put ads on videos of channels without lots and lots of followers.

So basically in this one short sentence -- 14 words long -- has four major factual errors in it. Wow. And he's not done yet.

Or they wouldn’t be able to put up any musician’s work, whether they wanted it on the service or not, without having to bear some consequences. That would really change things.

Again, YouTube is not the one putting up works. Users of YouTube are. And if and when those people upload a video -- that is not covered by fair use or other user rights -- and it is infringing, then the copyright holder has every right under the DMCA that Taplin misstates earlier to force the video down. And if YouTube doesn't take it down, then they face all the consequences of being an infringer.

So what would "really change" if we removed the DMCA's safe harbors? Well, YouTube has already negotiated licenses with basically every record label and publisher at this point. So, basically nothing would change on YouTube. But, you know, for every other platform, they'd be screwed. So, Taplin's plan to "break up" Google... is to lock the company in as the only platform. Great.

And this leaves aside the fact (whether we like it or not) that under YouTube's ContentID system which allows copyright holders to "monetize" infringing works has actually opened up a (somewhat strange) new revenue stream for artists, who are now actually profiting greatly from letting people use their works without going through the hassle of negotiating a full license.

I also think it would change the whole fake news conversation completely, because, once Facebook or YouTube or Google had to take responsibility for what’s on their services, they would have to be a lot more careful to monitor what goes on there.

Again... what? What in the "whole fake news conversation" has anything to do with copyright? This is just utter nonsense.

Second, if platforms are suddenly "responsible" for what's on their service, then... Taplin is saying that the very companies he hates, that he thinks are the ruination of culture and society, should be the final arbiters of what speech is okay online. Is that really what he wants? He wants Google and Facebook and YouTube -- three platforms he's spent years attacking -- determining if his own speech is fake news?

Really?

Because, let's face it, as much as I hate the term, this interview is quintessential fake news. Nearly every sentence Taplin says includes some false statement -- often multiple false statements. And the Boston Globe published it. Should the Boston Globe now be liable for Taplin's deranged understanding of the law? Should we be able to sue the Boston Globe because it published utter nonsense uttered by Jonathan Taplin? Because that's what he's arguing for. Oh, but, I forgot, according to Taplin, the Boston Globe -- as a newspaper -- has no such safe harbor, so it's already fair game. Sue away, people...

Wouldn’t that approach subject these services to death by a thousand copyright-infringement lawsuits?

It would depend on how it was put into practice. When someone tries to upload pornography to YouTube, an artificial intelligence agent sees a bare breast and shunts it into a separate queue. Then a human looks at it and says, “Well, is this National Geographic, or is this porn?” If it’s National Geographic it probably gets on the service, and if it’s porn it goes in the trash. So, it’s not like they’re not doing this already. It’s just they’ve chosen to filter porn off of Facebook and Google and YouTube but they haven’t chosen to filter ISIS, hate speech, copyrighted material, fake news, that kind of stuff.

This is just a business decision on their part. They know every piece of content that’s being uploaded because they used the ID to decide who gets the advertising. So they could do all of this very easily. It’s just they don’t want to do it.

First off, finally, the Boston Globe reporter pushes back slightly. Not by correcting any of the many, many false claims that Taplin has made so far, but in highlighting a broader point: that Taplin's solution is completely idiotic and unworkable, because we already see the abuse that the DMCA takedown process gets. But... Taplin goes into spin mode and suggests there's some magic way that this system wouldn't be abused for censorship (even though the existing system is).

Then he explains his fantasy-land explanation of how YouTube moderation actually works. He's wrong. This is not how it works. Most content is never viewed by a human. But let's delve in deeper again. Taplin and some of his friends like to point to the automated filtering of porn. But porn is something that is much easier to teach a computer to spot. A naked breast is something you can teach a computer to spot pretty well. Fake news is not. Hate speech is not. Separately, notice that Taplin never ever mentions ContentID in this entire interview? Even though that does the very thing he seems to insist that YouTube refuses to do? ContentID does exactly what he claims this porn filter is doing. But he pretends it doesn't exist and hasn't existed for years.

And the Boston Globe just lets it slide.

Also, again, Taplin insists that YouTube and Facebook "haven't chosen to filter ISIS" even though both companies have done so for years. How does Taplin not know this? How does the Boston Globe reporter not know this? How does the Boston Globe think that its ignorant reporter should interview this ignorant person? Why did they then decide to publish any of this? Does the Boston Globe employ fact checkers at all? The mind boggles.

Meanwhile, we really shouldn't let it slide that Taplin -- when asked specifically about copyright infringement -- seems to argue that if copyright law was changed, it would somehow magically lead Google to stop ISIS videos, hate speech and fake news among other things. None of those things has anything to do with copyright law. Shouldn't he know this? Shouldn't the Boston Globe?

As for the second paragraph, it's also utter nonsense. YouTube "knows every piece of content that's being uploaded because they used the ID to decide who gets the advertising." What does that even mean. What is "the ID"? And, even in the cases where YouTube does decide to place ads on videos (again, which is greatly restricted, and is not for all content), the fact that Google's algorithms can try to insert relevant ads does not mean that Google "knows" what's in the content. It just means that an algorithm does some matching. And, sure, Taplin might point out that if they can do that, why can't they also do it for copyright and ISIS and the answer is that THEY DO. That's the whole fucking point.

Again, why is the Boston Globe publishing utter nonsense?

Is Google trying to forestall this kind of regulation?

Ultimately YouTube is already moving towards being a service that pays content providers. They announced last month that they’re going to put up a YouTube music channel. And that will look much more like Spotify than it looks like YouTube. In other words, they will license content from providers, they will charge $10 a month for the service, and you will then get curated lists of music. From the point of view of the artists and the record company, it’ll be a lot better than the system that exists now — where essentially YouTube says to you, your content is going to be on YouTube whether you want it to or not, so check this box if you want us to give you a little bit of the advertising.

YouTube has been paying content providers for years. I mean, it's been years since the company announced that in one year alone, it had paid musicians, labels and publishers over a billion dollars. And Taplin claims they're "moving" to such a model? Is he stuck in 2005? And, they already license content from providers. The $10/month thing again, is not new (it's been available for years), but that's a separate service, which is not the same as regular YouTube. And it has nothing to do with any of this. If the DMCA changed, then... that wouldn't have any impact at all on any of this.

Still, let's recap the logic here: So YouTube offering a music service, which it set up to compete with Spotify and Apple Music, and which has nothing to do with the regular YouTube platform, will somehow "forestall" taking away the DMCA's safe harbors? How exactly does that work? I mean, wouldn't the logic work the other way?

The whole interview is completely laughable. Taplin repeatedly makes claims that don't pass the laugh test for anyone with even the slightest knowledge of the space. And nowhere does the Boston Globe address the multiple outright factual errors. Sure, I can maybe (maybe?) understand not pushing back on Taplin in the moment of the interview. But why let this go to print without having someone (anyone?!?) with even the slightest understanding of the law or how YouTube actually works, check to see if Taplin's claims were based in reality? Is that really so hard?

Apparently it is for the Boston Globe and its "deputy editor" Alex Kingsbury.

Filed Under: content moderation, copyright, dmca, dmca 512, intermediary liability, internet, interview, isis, jonathan taplin, journalism, regulation, videos
Companies: boston globe, facebook, google, twitter, youtube

Here Comes The Attempt To Reframe Silicon Valley As Modern Robber Barons

from the don't-buy-it dept

It's difficult for me to read Jonathan Taplin's cri de coeur about Google and other technology companies that have come to dominate the top tier of successful American corporations without wincing in sympathy on his behalf.

But the pain I feel is not grounded in Taplin's certainty that something amoral, libertarian and unregulated is undermining democracy. Instead, it's in Taplin's profound misunderstanding of both the innovations and social changes that have made these companies not merely successful but also—for most Americans—vastly useful in enabling people to stay connected, express themselves and find the goods and services (and, even more importantly, communities) they need.

"It is impossible to deny that Facebook, Google and Amazon have stymied innovation on a broad scale," Taplin argues in his screed. He wants Google to divest itself of DoubleClick, in theory because the search engine would be much better if it were unable to generate profits from digitized ad services. He wants Facebook to unload WhatsApp, because the world was much better when connected citizens in the developing world had to pay 10 cents for each SMS message they sent. None of this really amounts to reform and, of course, such "reforms" wouldn't touch companies like Apple or Microsoft in the least.

What Taplin really wants isn't to reform but to reframe. He wants us to understand current tech-company leaders as evil, or at least amoral and out of control. Toward this end, he begins his new book (a much more extended version of his Times screed) by ominously quoting Facebook's Mark Zuckerberg: "Move fast and break things. Unless you are breaking stuff, you aren't moving fast enough."

Despite his misreading of the underlying technologies shaping today's digital world, Taplin—founding director and now director emeritus of the University of Southern California's Annenberg Innovation Lab—is no dummy. He knows that if he asks ordinary internet users whether they hate or love Google or Amazon or Facebook (or whether they'll willingly part with their new iPhones) he's not going to get a lot of buy-in. Even under a hypothetical President Bernie Sanders, regulating Google as a monopoly wouldn't be a meat-and-potatoes issue.

Instead, Taplin creates a counter-narrative in which American technology successes (with the notable exception of Microsoft) represent the kind of rapacious octopus-like capitalism so often caricatured by cartoonists like Thomas Nast. Google and Facebook may not hurt me in particular, but the theory he offers is that they somehow hurt America in the abstract. Taplin essentially reframes American tech success as a retelling of the oil, railroad, banking and telegraph robber-baron trusts of the 19th and early 20th centuries.

But the very tech companies whose success Taplin is absolutely certain is anti-democratic were built on infrastructure and resources that, under federal law and regulation, have been highly regulated throughout his (and my) lifetime. We may disagree about what the regulations should be, but there's little disagreement that there's already a regulatory framework. The regulation of monopoly infrastructures—telephone and telegraph networks, in particular—were what made it possible to refrain from regulating what you said or did on those networks. Regulation at the "wire" level of the infrastructure—and at various technical levels above that—created the space for today's innovative services that provide near-instantaneous access to, potentially, all the information in the world and all the people with whom you would want to stay in touch.

Search engines and other digital tools are, of course, highly disruptive to industries whose traditional model involved having school-age kids hawking ink and wood pulp on street corners. Like Taplin, I still believe newspaper journalism is essential to democracy. Indeed, I read Taplin's op-ed early Sunday morning because I subscribe to the digital edition of The New York Times. We must continue to explore new ways to make this necessary journalism not merely survive, but thrive.

But it also bears mentioning that Taplin doesn't mention Craig Newmark or Craigslist in his screed against Google, even though, if you were to buy into the fundamentals of Taplin's argument, Craigslist clearly did more to erode daily newspapers' advertising revenue than Google has ever done. And, yet, at the same time, it's worth noting here that Newmark—like most of the other successful tech moguls Taplin lumps together into a sort of secret-handshake techno-libertarian fraternity—actually gives money to Poynter, ProPublica and other enterprises that actively respond to the very real problem of very fake news.

A little research into the history of scientific discovery puts even the scary Zuckerberg quote about "breaking stuff" in a different light. The philosopher Karl Popper opens his essential book Conjectures and Refutations with two quotations: "Experience is the name every one gives to their mistakes," from Oscar Wilde and "Our whole problem is to make the mistakes as fast as possible," from the physicist John Archibald Wheeler.

That sentiment—to be adventurous, to risk things, to learn quickly from making mistakes quickly—is, I believe, exactly what Zuckerberg was getting at. It also extends to making mistakes in our search for a new business model for journalism. But this shouldn't include Jonathan Taplin's great big mistake of looking into the digital future and seeing only places we've been before.

Mike Godwin (@sfmnemonic) is a Senior Fellow at R Street Institute. Godwin was named as a Freedom Forum Fellow at the Freedom Forum Media Studies Center in 1997 and may have once said something about Nazis online for which he will always be remembered.

Filed Under: innovation, jonathan taplin, silicon valley
Companies: facebook, google

You Have To Distort The Facts Pretty Badly To Argue That Google & Facebook Are Worse For Consumers Than AT&T

from the just-sayin' dept

We've had our run-ins with Jonathan Taplin before. The quintessential OMYAC of the legacy entertainment industry, who is so obsessed with the nefarious things he insists Google and Facebook are doing (even though he's often flat out wrong), is back in the pages of the NY Times, arguing that regulators shouldn't be so concerned about AT&T, when they should be attacking Google and Facebook instead.

Taplin kicks it off by jumping on Mark Cuban's ridiculous comments from last week saying that AT&T should be able to buy Time Warner so that it can "compete" against Google and Facebook, and then takes it to an even more ridiculous level. The crux of Taplin's argument: Google and Facebook are big, and thus bad, and need antitrust treatment.

Look at the numbers. Alphabet (the parent company of Google) and Facebook are among the 10 largest companies in the world. Alphabet alone has a market capitalization of around $550 billion. AT&T and Time Warner combined would be about $300 billion.

Yup. They're big companies -- and certainly, like with all big companies, we should be wary about how they might abuse their powers. But big, by itself, isn't automatically bad. And the nature of antitrust is not that big is bad, but that abusing monopoly power is bad. And Taplin has no way to show either (1) monopoly power or (2) abusive behavior, so he just starts throwing numbers.

Alphabet has an 83 percent share of the mobile search market in the United States and just under 63 percent of the US mobile phone operating systems market. AT&T has a 32 percent market share in mobile phones and 26 percent in pay TV. The combined AT&T-Time Warner will have $8 billion in cash but $171 billion of net debt, according to the research company MoffettNathanson. Compare that to Alphabet’s balance sheet, with total cash of $76 billion and total debt of about $3.94 billion.

Nice cherry picking, Jonathan! The real scam in fake antitrust complaints is trying to define the markets in a way that looks much worse than it really is. Notice that Taplin focuses on "mobile search" (random?) as the market for Google and "mobile phones" for the market for AT&T. But he leaves out the simple facts: if you need an internet connection, in many cases AT&T is either your only option or one of two options. And if you do that, AT&T gets to see everything you do. And switching broadband providers or mobile phone providers is a complicated and often expensive process. Switching a search engine... is not.

Then, to get to the question of "bad behavior," Taplin falls back on the silly line that because Google and Facebook have made a lot of money, and his buddies in legacy entertainment companies have been making a lot less money, that somehow Google and Facebook have unfairly taken money from his industry. That's just silly.

In the past decade, an enormous reallocation of revenue of perhaps $50 billion a year has taken place, with economic value moving from creators of content to owners of monopoly platforms.

I reached this conclusion from the following statistics: Since 2000, recorded music revenues in the United States have fallen to $7.2 billion per year from $19.8 billion. Home entertainment video revenue fell to $18 billion in 2014 from $24.2 billion in 2006. United States newspaper ad revenue fell to $23.6 billion in 2013 from $65.8 billion in 2000.

And yet, by every available metric, people are consuming more music, video, news and books. During that same period, Google’s revenue grew to $74.5 billion from $400 million.

Sing it with me, folks: correlation is not causation. After all, the number of works of visual art copyrighted in the US similarly has an inverse correlation to the number of females in NY who slipped or tripped to their death (really!). It doesn't mean it's a causal relationship where more of one means less of the other.

The reason that Google and Facebook are making lots of money is because they're offering a product that people want and they're doing it for free and have come up with business models that work. The reason legacy entertainment companies are flailing (and, realistically, only some of them are), is because they tried to stick with their old business model that focused on basically ignoring or mocking and attacking competition from new sources.

The problem, in short: Taplin's whole world revolved around elitism and gatekeepers. The business models he celebrates are gatekeeper business models -- the ones that keep out the riff raff and the people that Taplin likes to insult because he thinks their "art" isn't good enough to be seen by the world. The world of the internet is the opposite. It's about enabling anyone to be a creator, and to open up new avenues to create, to share, to promote, to distribute, to build a fan base and to monetize. Those were all functions that Taplin and his friends used to control, with a strict lock on the gate, allowing them to artificially inflate the prices. When the new platforms came on the market and democratized every bit of the process of creating/distributing content, suddenly the "deal" offered by the gatekeepers didn't look so good. And that's why those busineses have struggled.

And it's why, comparatively speaking, most of the public likes companies like Google and Facebook, while they hate AT&T. Find me a list of consumer satisfaction or most admired companies where AT&T outranks either of the other ones. Antitrust should be about protecting consumers -- and the public is pretty happy with the services it gets from Google and Facebook... but not so much with AT&T.

But, of course, to Taplin, it all comes back to piracy, because he's absolutely sure that's why everyone uses Google and Facebook, even though he's wrong.

Every pirated music video or song posted on YouTube or Facebook robs the creators of income, and YouTube in particular is dominated by unlicensed content. Google’s YouTube has an over 55 percent market share in the streaming audio business and yet provides less than 11 percent of the streaming audio revenues to the content owners and creators. But Facebook, which refuses to enter into any licensing agreement on music or video, is challenging YouTube in the free online video and music world.

As we discussed a few months ago, when you look at the actual data, only 2% of music video views on YouTube are unauthorized. 2%. So, no, YouTube is not "dominated by unlicensed content." That's simply and utterly false. And, no, even those unauthorized videos are not "robbing creators of income." Many smart creators these days are using YouTube as a platform to get more fans and build a bigger support base, which they can take to platforms like Patreon or Kickstarter, rather than having to give up everything to sign with a major label run by one of Taplin's friends.

I recognize that Taplin's friends have struggled to understand and adapt to this new world. And I understand that they want to lash out at the big companies like Google and Facebook that have helped make this world a reality. But why does the NY Times keep letting him publish blatantly factually false information? Oh, and the kicker? After a long rant that is full of misleading buillshit... he asks for "an honest national conversation."

Perhaps in January we can have an honest national conversation on monopoly and our future.

If we were to have an honest conversation, it would have to leave out Taplin's lies.

Filed Under: access, antitrust, business models, correlation, internet, jonathan taplin, monopoly, social media
Companies: at&t, facebook, google

You're Entitled To Your Own Opinions, But Not Your Own Facts About Copyright, NY Times Edition

from the fact-checking-is-dead dept

The NY Times has an op-ed piece by Jonathan Taplin, claiming that Silicon Valley hates music, that is so chock full of out and out factual errors that it's an embarrassment for the NY Times to have allowed it to be published. Is fact checking dead at the Gray Lady? It's perhaps not as embarrassing for Taplin, who's been spewing ridiculous falsehoods for years about how technology is out to destroy all creative culture. In the past we've had to correct his blatantly false statements, but it seems odd to us that the NY Times would let him publish a piece so devoid of facts. Let's dig in and do some editing and fact checking that the NY Times apparently failed to do.

That’s a fight artists are losing. It’s been 17 years since Napster, the online file-sharing software, began flooding the Internet with free, illegally uploaded music, devastating musicians and the industry. While Napster is long gone, the looting continues, only now it is technology giants like Google and SiriusXM, along with streaming services like Pandora, that are responsible.

This is an interesting, and bizarre, claim, given that unlike Napster, the three companies named all pay a ton of money in license fees for the works in question. In fact, both SiriusXM and Pandora have struggled to reach profitability in large part because of the massive percentage of revenue that goes directly to record labels (note: not directly to the musicians themselves, which may give you a hint as to the real problem). Last fall, Pandora noted that it had paid $1.5 billion in licensing, with over $500 million of that coming in 2015 alone (and this was before the year ended). The company has shown that approximately 60% of revenue goes to licenses, and this is a capital intensive business, given that it has to stream a ton of content and bandwidth for that level of streaming is not cheap. Spotify, similarly, has claimed to pay out approximately 70% of revenue. A year ago, Spotify claimed to have paid out $3 billion, noting a run rate of over $1 billion paid to artists per year. YouTube has similarly paid out over $3 billion.

It takes quite a lot of gall to argue that these services, which didn't exist at all just a few years ago, but which have consistently moved people away from piracy by creating services that people like -- and which often pay more than 50% of their revenue in royalties, are somehow "looting" the industry. Does he not realize that without these services, it's likely that there would actually be more piracy, from which the artists would receive no direct remuneration? Would he prefer that? Or would he prefer that these companies be forced to pay even more so that they couldn't even exist any more at all, which would, once again, drive people right back to piracy? It makes no sense at all. To call this "looting" is nonsensical and not fact-based.

YouTube, which is owned by Google, is now the world’s dominant audio streaming platform, dwarfing Spotify and virtually every other service. Yet it pays artists and record companies less than a dollar a year for every user of recorded music, thanks to rampant piracy on its site (by contrast, Spotify licenses its music and pays $20 per user each year).

This is comparing apples to oranges. Spotify is just a music service. YouTube is mostly other stuff, with some music. Notice that he doesn't compare Spotify to YouTube Red or to Google Music, which are more on par.

The problem has gotten so bad that, in 2015, vinyl record sales generated more income for music creators than the billions of music streams on YouTube and its competitors.

This point was a talking point that the RIAA trotted out earlier this year and has already been debunked. Vinyl HAS NOT generated more income for music creators than music streams. That's just blatantly false. What the RIAA showed was that gross retail value of vinyl sales (i.e., ignoring actual sales price, as well as the cut that goes to retailers and other middlemen) was higher than the net amount that was paid in royalties on just ad-based music streaming (i.e., ignoring all of the subscription and paid revenue). This is worse than an apples to oranges comparison. And, even then, with those caveats, Taplin's claims go way beyond what the RIAA actually showed. The royalties from vinyl that actually went back to artists were a lot less than what went to artists from ad-supported music streaming, not to mention all music streaming.

Either Taplin is lying or he's totally misinformed.

Google has also leveraged its dominance in Internet search into a cash cow built on advertising. But Google doesn’t care if your search for the movie “Mean Streets” or the music from “The Last Waltz” (both of which I produced) brings up licensed versions or pirated copies: The company sells ads and cashes in either way. Creators, however, get nothing from those stolen copies — except the anguish of watching others grab the value of their life’s work.

Okay, let's try it. I searched for "Mean Streets" on YouTube and on Google's video search. I don't see a pirated copy anywhere. YouTube does show me a licensed version and a variety of obviously fair use clips (all less than 5 minutes). Google Video search seems to just show me the theatrical trailer and some fair use clips. In neither search do I see an unlicensed version. A regular (not Google Video search) Google search again points to clips, but also has multiple options on where you can pay to see a licensed version. I don't see a pirated version anywhere.

Google has basic “digital fingerprinting” technology that could scrub both YouTube and its search results of illegal versions. But instead of safeguarding the work of artists, Google wields this tool as a bludgeon. Creators can either enter into a licensing agreement with YouTube at very low royalty rates, or get left at the mercy of pirates. What looks like protection for copyright holders is more of a protection racket benefiting Google.

This is blatantly false. Not only is it blatantly false, but just last week at the Copyright Office hearings in San Francisco that Jonathan Taplin attended, when someone claimed this, Fred von Lohmann from Google pointed out that it is absolutely false -- something he has now reiterated on Twitter: What Taplin is (apparently willfully?) confusing, is that in order to use ContentID, you do need to grant Google a license, but that license is to make it legal for them to then hold the copy of the work on file for the purpose of fingerprinting. And, then, you can use ContentID to do "notice and staydown" of any matching copies. To blatantly misrepresent how Google works just days after being told this is wrong just seems... like someone with an axe to grind with no concern for the facts at all.

And all of that raises the question of why the NY Times allowed it to be published without doing even the slightest fact checking?

Unfortunately, there is a sad history of undervaluing musicians in the United States. Terrestrial radio, a $17 billion industry, pays publishing rights (payments to songwriters) but has never paid artists or record companies for music.

Yes, some could make an argument that this setup is unfair, but the market suggests otherwise. The reason that the law said that performers didn't need to be paid was because it recognized that radio was promotional. And it is. That's why every few years the recording industry gets caught up in a new scandal about payola. That is, the copyright holders of the sound recordings have long recognized that radio play is so valuable that they will pay extra money under the table to make it happen, even if that's illegal. Obviously, if the radio play wasn't so valuable, this wouldn't be happening. And yet now they want to get paid extra for that value? That seems to be the exact opposite of what the market suggests is the power dynamic here.

In addition, the satellite radio company, SiriusXM, pays below-market royalties, thanks to a giveaway it first wrested from Congress 20 years ago.

"Below market"? Based on... what? Again, SiriusXM has struggled to barely reach profitability. After years of losses, it has been profitable recently, but just barely.

Conglomerates like iHeartMedia (formerly Clear Channel Communications) and other online services like Pandora, which are required to pay artists for digital streams, have exploited federal copyright law to deny payments for work recorded before 1972 (songwriters are paid; performers are not). This means artists like Aretha Franklin, Ella Fitzgerald, Chuck Berry and John Coltrane never received a dime from AM/FM radio and or from many digital services for some of their greatest music.

The pre-1972 stuff is a long and complicated story that we've covered in detail, and has a lot more to do with the fact that pre-1972 sound recordings are not covered by federal copyright law than any willful plan to "exploit" anyone. And there's a simple solution to this: put those works under federal copyright law. But you know who's fought hard against that? Taplin's friends in the RIAA. Maybe he should take it up with them. He also ignores, of course, that Pandora recently agreed to pay $90 million for those recordings, despite it not being clear if it needs to, legally. Is Taplin asking how much of that money will actually go to artists? Hmm...

The last meaningful legislation in this area was the Digital Millennium Copyright Act in 1998, which was based on the idea that creators should monitor the Internet for illegal copies of their works and give “notice” to websites and services to take pirated material down. Under the act’s “safe harbor” provisions, any service or site that makes a minimal effort to address these notices is immune from liability for piracy or theft.

"Minimal effort"? He seems to be ignoring the vast number of lawsuits, including the one against Veoh, in which Veoh won, but had to shut down over legal fees. It also ignores the fact that basically every other platform spends a ton of money handling takedown notices.

And it ignores the fact that most services have implemented filters and tools that go way above and beyond what the law requires. Why would Taplin ignore all of this? Why would the NY Times let him do so?

That system may have made sense when it took minutes to download an illegal song. But today no individual can effectively police the millions of pirated files that mushroom online and reappear the instant after they are taken down. Google alone received almost 560 million takedown notices in 2015.

And, again, Google spent $60 million building ContentID and related tools that go way beyond what the law requires and gives copyright holders the ability to either monetize their works in new ways or to issue a "notice and staydown".

There are two concrete steps Congress can take that would allow musicians to be treated fairly. First, Congress should update the safe harbor rules of the copyright act to achieve the balance that was intended: protecting creators with effective tools in exchange for not burdening Internet companies with liability. That means strong, well-defined consequences for repeat offenders, easing the process for filing notices and ensuring that services are using the best technology to take pirated material off their sites and keep it off.

So, basically, after flat out lying throughout the piece, and pretending that Google doesn't already have these tools, he wants a law to require such tools. Note: Google already has everything Taplin is asking for. But it spent $60 million putting that together. If Taplin got what he wanted, he'd lock in Google/YouTube as basically the only players able to handle this market. Does he want new providers and services or is he trying to kill the market entirely?

Second, Congress can address the original sin of AM and FM radio and close the loophole that allows radio companies to use music without paying artists. The Fair Play Fair Pay bill, which has Representative Jerrold Nadler of New York as a sponsor, would ensure that all music creators received fair-market-value pay for their work no matter what technology or service was used to play it. It has the support of hundreds of artists like Rosanne Cash, Duke Fakir of the Four Tops, Elvis Costello, Martha Reeves, Elton John and Common.

Again, given payola, it's hilarious for him to argue that this is necessary, but he's entitled to his opinion -- just not his own facts.

In 2015, after years of battling pirates, Prince said in an interview that the Internet “was over for anyone who wants to get paid.” With Congress’s help, it needn’t be.

Prince was wrong then and he's wrong now. There are more musicians making money from the internet today than ever made money prior to the internet. There are content creators using YouTube, Spotify, Songkick, Soundcloud, Amazon, Apple, Kickstarter, IndieGogo, Patreon and many, many more services to not just make money but to build strong and lasting relationships with their fans.

Again, it's no surprise that Taplin would lie. It's kind of his thing when it comes to his misguided and misinformed anger at the very innovation that's saving the entertainment business. The question is why the NY Times, a paper that prides itself on accuracy, would allow a piece so blatantly false to be published.

But, really, the most disturbing thing about this is that it perpetuates the myth that it's "content creators" v. "the tech industry." This is nonsense. Technology has been a major force in enabling more content creators -- including myself -- to create content, to promote it, to distribute it, and to monetize it. More people than ever before are making and distributing music, videos, books, software and more... because of these tech platforms. This isn't a zero sum game. There are opportunities for everyone to benefit, and setting up this false dichotomy that when one wins the other loses, Taplin and the NY Times are actually setting everyone up to lose by not just misrepresenting reality, but totally misunderstanding the very nature of both creativity and innovation.

Filed Under: contentid, facts, jonathan taplin, music, takedowns, youtube
Companies: google, ny times, youtube

Innovation, Copying And Civil Disobedience

from the moving-the-discussion-forward dept

We recently took Jon Taplin to task for his comments insulting Nina Paley's artwork, because he did not agree with her viewpoint that disobeying copyright law for the sake of making new art was a form of "intellectual disobedience." The debate spilled over to Twitter for a while, in which it went a bit all over the map, before Taplin did issue what appears to be a sincere apology, along with a blog post, which he said he hoped would move the debate forward (unfortunately, that blog post contains yet another backhanded slap at Paley's art -- which he calls "what she claims to be art").

That said, since we're always about "moving the debate forward," rather than arguing over old points, we might as well do that -- and Taplin's blog post, does in fact, bring some new things to the debate that are worth discussing. First, though, as a preamble, to those who haven't been a part of "the debate," I might as well catch you up by posting the in-person debate between me and Jonathan that happened a few weeks ago at the Tech Policy Summit (but was only recently posted online). It runs 45 minutes, starting off slow but gets more and more lively as it goes on: Okay. Now that you're caught up, the Taplin's blog post reasonably asks if we're losing our ability to innovate, as we become more focused on the ease of copying as an alternative. It's an appealing thought, but one that I don't believe survives significant scrutiny. However, let's start at the top. Taplin points to an article called Infinite Stupidity by evolutionary biologist Mark Pagel. It makes some very interesting arguments, talking about evolution, and wonders if humans are evolving away from being innovative. The basis of this is as follows:

If I'm living in a population of people, and I can observe those people, and see what they're doing, seeing what innovations they're coming up with, I can choose among the best of those ideas, without having to go through the process of innovation myself. So, for example, if I'm trying to make a better spear, I really have no idea how to make that better spear. But if I notice that somebody else in my society has made a very good spear, I can simply copy him without having to understand why.

What this means is that social learning may have set up a situation in humans where, over the last 200,000 years or so, we have been selected to be very, very good at copying other people, rather than innovating on our own. We like to think we're a highly inventive, innovative species. But social learning means that most of us can make use of what other people do, and not have to invest the time and energy in innovation ourselves.

Now, why wouldn't we want to do that? Why wouldn't we want to innovate on our own? Well, innovation is difficult. It takes time. It takes energy.

The fear then, is that, as a species, we become "docile copiers" rather than innovators. In fact, as he later argues (in the paragraph that Taplin highlights on his blog), Pagel questions if the internet is leading to a situation where "copiers are probably doing better than innovators" because we don't have to innovate to get by. It's an interesting theory from an evolutionary perspective, but not one borne out by economics or history, unfortunately, which have studied this particular issue much more closely. Of course, throughout history there are numerous examples of people insisting that we had reached the pinnacle of innovation and there was nothing more to be done. And every time, they're proven not just wrong, but laughably so.

Innovation may be "hard," but it's also incredibly rewarding. If you want to read a very long, but absolutely fascinating and worthwhile book on the subject, I highly recommend Robert Friedel's awesome A Culture of Improvement, which looks at the last thousand years of innovation to understand why do we innovate. The key finding? That we improve because we see a better way of doing things.

But -- and this is the key point -- the way that you see "a better way of doing things" is not to invent something new from scratch. But to see something -- and, often to copy it and then to improve upon it. We, as a species, are always looking to improve. The argument that Facebook has made people perfectly docile suggests little understanding of what happens on Facebook all the time. Even just looking at Facebook alone, there are constant complaints about how it works, with suggestions on how to make it better. There are still companies launching new and different social networks, believing they can do it better.

Is there some copying going on? Yes, absolutely, but there's no real reason to just copy for the sake of copying. It's only if you can do it better. In fact, as the (also excellent) book by Oded Shenkar, Copycats explained, copying is often a very useful strategic weapon in figuring out how to innovate. What Shenkar's work showed was that there is value in copying, but not merely for copying's sake, but to take what's been done, not to re-invent the wheel, but then to do the incremental improvements on it that can make all the difference in the world.

Going back to Nina Paley. Taplin suggests that her "art" is barely art at all, because she is one of those "docile copiers," and thus not innovating. But this suggests a near total ignorance of Paley's work, an incredibly innovative film, which you can see right here: Is Nina copying? Well, it tells a variation on a classic Indian story, combined with a modern story of the main character's own struggles. It also cleverly weaves in the music of Annette Hanshaw. Is there "copying" going on there? Sure, there are elements of copying, but it's all for the sake of innovating. There is no way to watch that and claim that it is mere "docile copying." Nina had a story to tell, and sought to tell it in a very innovative way. The story had certainly never been told this way. And tons of people have enjoyed the movie because of that innovation. If it were just a copy of "the same old story" people would not have enjoyed it.

And that, really, is what happens all the time. Copying is there -- and it can make people upset -- but it's a key natural resource in the process of innovation. And that's not just a random statement. As the research of many economists have suggested, it is the very nature of copying that leads to economic growth. Why? Because a copy increases the pie. Where once you had "one" copy of the resource, now you have two. And so on. It expands the pie, and makes it more possible to do things, such as innovating.

Caltech professor Carver Mead once talked about how, when things become abundant we have an obligation -- not just a possibility, but an obligation -- to waste that which is abundant. And that is because it creates new opportunities and expands the world and innovation even further. What is more abundant than what can be copied?

So, all of this fear of "docile copying" is, I believe, misplaced. All of that copying is generating the expanding natural resource base for further innovation, as people continue to build on that culture of improvement by saying, "hey, I can do that better." Innovation may be hard, but when the resources are abundant, it cannot be stopped. It is our nature to seek to make things better, and when we share ideas and build and copy on our way to making things better, it is the inevitable progress that we find at the end.

I'm glad that Jonathan brought up this subject and is seeking to move this debate and discussion forward, and I look forward to continuing the back and forth -- hopefully on friendlier terms.

Filed Under: civil disobedience, copying, evolutionary biology, jonathan taplin, nina paley

Why Do The People Who Always Ask Us To 'Respect' Artists Seem To Have So Little Respect For Artists?

from the just-wondering dept

Over the years, we've posted tons and tons of stories of content creators embracing the internet, exploring the new opportunities it creates and often profiting greatly from doing so. We regularly celebrate the great creativity from these artists, and cheer them on as they succeed and (sometimes) make lots of money. And yet... there is a certain contingency out there who keeps insisting that we "hate" artists, or alternatively, that we have no respect for artists. This is bizarre. I adore artists and creativity. Part of the reason we spend so much time here discussing new business models and opportunities is that we want more artists to succeed. I have trouble understanding why that's so bad. At best, it seems to be a case of shooting the messenger. In order to embrace these new models it helps to recognize that the old models just aren't that good anymore. And that gets some people upset. So they shake their fist at the sky... and blame us because we tell them that having an umbrella might be a good idea.

But one thing I find most troubling in all of this is that the very same people who constantly yell and scream about how we don't respect artists almost always make sure to mock and denigrate the quality of artists who do succeed these days. Take, for example, Jonathan Taplin, who (for reasons that escape me and many others) is the head of an "innovation lab" at USC, despite an apparent lack of understanding of the very basics of innovation. Instead, he pines for a historical fictional world that never existed. We wrote about some of his bizarre claims a few months ago. A few weeks ago, I was able to debate Jonathan at the Tech Policy Summit. Video of that should be going up soon, but it was more of the same. Taplin didn't have the facts on his side (he repeatedly made statements that were out-and-out false) and once he was called on it, he resorted to personal insults directed at me.

Taplin, in the past, has directly accused me of not respecting artists. But, then, we recently had a blog post about filmmaker Nina Paley and how she's dealing with the fact that copyright laws -- if obeyed -- would hold back her own creativity. And, rather than "respect" artists, or even engage in any form of serious debate, Taplin went on a Twitter rampage tossing insults at Nina and the quality of her work. First, he called her talentless:

Text: @techdirt. Only someone as talentless as Nina Paley would excuse theft. She can't even give her work away. Revenge of the nerds

Then he called her thoughts on the matter "half-witted":

Text: @ninapaley-This is truly sad and half-witted. radar.oreilly.com/2012/06/copyri ... via @radar

And finally, he made this confusing statement, which is similar to one he emailed me about how (in his head) my vision of the world is one in which we were all forced to watch videos of cats rather than Hollywood movies:

Text: If @ninapaley gets her way we will be forced to watch crap like Bob, The Angry Flower. The Revenge of the talentless Nerds

First of all, nearly everything he says is wrong. Nina Paley can and does give her work away. You can (and, if you haven't already, should) go watch her excellent movie, Sita Sings the Blues. And, contrary to what he'd have you believe (that no one could possibly make money giving away content for free), Nina does make money. Finally, I'm really at a loss as to how one would ever be "forced" to watch anything they didn't want to watch. In fact, these days, with such a massive explosion in choice, the idea that anyone would ever be a captive audience forced to watch something they didn't like just doesn't make any sense.

But the larger point is this unfortunate trend that we've seen, exemplified by Taplin's childish outburst here. The people who keep claiming that those of us seeking real solutions don't "respect" artists when we cheer and celebrate their successes and praise their artwork and creativity -- always seem to be the same people who mock and insult those very same artists' work for being successful. It's one thing to criticize their ideas. That's perfectly reasonable. But to take it a step further and insult their abilities as an artist is really quite shameful. And that's doubly true when you're talking about someone who is a public figure like Taplin, a representative for USC. Is this really the face that USC wants to show to the world as its "director" of an "innovation lab"? Someone who mocks an artist and attacks her talent?

Filed Under: artists, jonathan taplin, nina paley, sita sings the blues, tech policy summit

The Band's Ex-Manager Accuses Reddit Of Profiting From Piracy In Debate With Co-Founder

from the um,-ok dept

Here's an interesting one. Fast Company had professor Jonathan Taplin, director of the USC Annenberg Innovation Lab and the former tour manager for The Band debate Alexis Ohanian, cofounder of Reddit, Hipmunk* and Breadpig. The debate is definitely worth watching, but I'm disappointed with many of Taplin's claims. He starts out by going for the emotional, talking about how The Band -- whose drummer Levon Helm passed away the day after the debate -- had members who were no longer making $150,000 to $200,000 per year, as they had been able to do up until about 2002. As Alexis notes in response, there are all sorts of useful business models to help them make money -- and he's even offered to help them make money. And, indeed, the story of Helm is quite tragic, but at the same time, most people when they are no longer working tend not to make as much money as they did in the past. Copyright was never supposed to be a pension for retired musicians, so it seems odd to argue that it isn't doing that. That was never the intention.
Frankly, what bugs me most about Taplin's argument is that he continually takes things totally out of context. For example, he cites the familiar numbers about the "music industry" going from $20 billion to $6 billion. Yet he ignores that the overall music industry grew because other parts of the industry grew at a much faster rate. More ridiculous? He claims (totally incorrectly) that Chris Anderson believes that "everything should be free." Either he didn't read Chris Anderson's book, or he's purposely distorting the book, which focuses nearly all of its attention on how to get paid for content. In fact, most of the book is about ways in which a "freemium" model works -- where you have some stuff free, and other things paid. Why Taplin would then claim the book is that "everything should be free" is beyond me. To have a university professor so misrepresent Chris's book is ridiculous. He owes a major apology to Anderson.

Bizarrely, Taplin then claims that Reddit makes money off of piracy. Say what?! At this point I think he's just making things up.

He also completely misrepresents Google having to give the government $500 million concerning advertisements from unlicensed online pharmacies. Taplin calls them "phony drug ads," which is also inaccurate. In many cases the drugs were legit -- but the licensing of the pharmacies to deliver those drugs to the US was in question (some, in fact, appear to have been perfectly legit Canadian pharmacies). He then claims that if Google made $500 million on fake drugs ads they must be making more on "illegal pirate ads." I'm curious: who exactly is buying "illegal pirate ads"?

From there, he tosses in the whole controversy over Backpage.com -- which has nothing to do with copyright, and he falsely smears them as providing a service for pimping "young ladies" -- leaving out the fact that (a) a court has already cleared the company and (b) this has nothing to do with copyright.

Taplin seems to be throwing together a bouillabaisse of arguments without understanding any of them, and thus misrepresenting nearly everything.

Alexis does a great job with his intro, first pointing out how movie box office revenue has increased, and then pointing out how innovation is the key here, and that industries can innovate their way forward, and points to Kickstarter's success as an example of how that's already beginning. Taplin, playing the old curmudgeon, insists this is all crazy. He mocks the movie stat because it ignores the collapse of DVDs. Of course if folks like Taplin had their way, there would be no home video market, because they tried to make it illegal back in the 1970s and 1980s (an inconvenient fact he seems to have forgotten). He also mocks Kickstarter because it won't fund Martin Scorcese's latest film. This is typical of someone who doesn't seem to understand the the innovator's dilemma. It's kind of shocking, frankly, that someone in charge of a so-called innovation lab doesn't understand how innovation works.


In the second part of the debate, Taplin goes full on elitist, mocking those people who use Kickstarter to fund a piddly $50,000 movie, because apparently, to him, those movies don't count. And yes, earlier in the debate, he was talking about how he was really concerned about the up and comers. He also seems to think that the only movies that matter are the movies that score big distribution deals. He's internally inconsistent and doesn't even seem to realize it. He goes on to mock the idea that musicians can make money other than through record sales. Except, he assumes (incorrectly) that the only way to make money is concert sales, and then says that some acts just can't get enough people to see them live. Um, duh. But that's always been true. Most musicians never sold enough music to make a living either, but we don't pass a law to change that. Taplin seems to be complaining that not all musicians or movie makers are rich. I didn't realize that was an issue.

Taplin then comes up with his "solution." It's to have every ISP charge users $2 to $3/month which would go into a giant global pool that would be distributed to copyright holders. Immediately, someone in the comments points out that doesn't fix bad contracts. It's even worse than that. First, the entertainment industry would insist that $2 to $3 is way too low. Hell, most music services alone get $10 or so per month. And really what Taplin is doing is to create a giant bureaucracy that won't effectively help small artists. He talks about ASCAP as the model for this. I wonder what he has to say about the fact that ASCAP takes money from up-and-coming artists and gives it to the largest acts.

Both videos are worth watching. The whole thing is only about 25 minutes, and I think Alexis more than holds his own, though it would have been nice if there was a little more time to hit back on many of Taplin's claims.

* Corrected after learning that Alexis didn't found Hipmunk -- just joined pre-launch.

Filed Under: alexis ohanian, debate, jonathan taplin, levon helm, the band
Companies: kickstarter, reddit