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?
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