As you may recall, back in 2007, entertainment giant Viacom sued YouTube for $1 billion, arguing that it was nothing more than a piracy site. Of course, Viacom's case faltered, badly, when it was later revealed that over 100 of the videos it listed as infringing had been... uploaded by Viacom employees as part of a marketing strategy. That act alone showed that even Viacom employees recognized the site had "substantial noninfringing uses." After seven years of battling it out in court, the two sides finally settled last year. However, it does seem noteworthy that Paramount Pictures, the major Hollywood movie studio that is owned by Viacom just announced that it had posted over 100 of its own movies for free on YouTube in their entirety.
This is important for a variety of reasons, but most of all it shows that, once again, when legacy entertainment firms learn how to embrace new technologies, rather than sue them, they're better off. Legacy entertainment companies have basically tried to sue or kill every new technological innovation that somehow challenged new business models. They sued over radio, television, VCRs, cable TV, MP3 players, DVRs and internet video. And yet, once they learned how to use each of those, they realized how great these platforms were in helping to distribute, to promote and to monetize their works.
If Viacom had succeeded in its lawsuits and killed off YouTube, would these movies be available for free online today? I think most people would agree the answer is "no way."
This is a big part of the reason why I get concerned about attempts to shut down businesses that some insist are "nothing but piracy sites." The VCR was "nothing but a piracy tool." The MP3 player was "nothing but a piracy tool." Radio was "nothing but a piracy tool." And YouTube was "nothing but a piracy site." And yet... given the chance to grow and to innovate, these services show that they are successful because they're providing a better product. Suing them out of existence takes away opportunities like this, where companies learn that they can benefit from these (often free!) services to better promote, distribute and monetize their own works. It's easy to think that something that is often used for infringing works in the early days is never going to be anything useful or legitimate, but that ignores the history of innovation in this space. Every new innovation originally looked like a piracy tool. Until it no longer did. Perhaps, rather than trying to kill off every new service, Hollywood should take a lesson and realize that maybe it should be figuring out better ways to embrace them early on, rather than many years later.
The whole right to be forgotten thing over in Europe continues to get more and more bizarre. Not too long ago, we wrote about one Thomas Goolnik, who had succeeded in getting an old NY Times story about him "delinked" from his name in Europe. The NY Times then wrote about that delinking, and we wrote about the NY Times article. Mr. Goolnik then succeeded in having our article about his successful right to be forgotten attempt also forgotten by Google. So we wrote about that too. And, once again, Goolnik succeeded in having that story forgotten. As of yet, it appears our final story on Goolnik has remained accessible on European searches for Goolnik's name, but we have no idea if it's because Google has realized that it should remain up or if Goolnik just hasn't made a request.
Meanwhile, it appears that the guy who first convinced the European Court of Justice to enforce this right to be forgotten, Mario Costeja Gonzalez, may have run into a similar situation. As you probably remember, Costeja brought the original case that argued that Google should no longer show results on searches for his name that linked to some stories in the late 90s about his being forced to sell some land to cover debts. The Court eventually decided that since this information was no longer "relevant," that under the data protection directive, it should be "delinked" in Google's database as a "privacy" measure.
Of course, as many people pointed out, in bringing that very case, the details of Costeja's financial transactions suddenly became relevant again. And, apparently that resulted in more people commenting on Costeja, including an article entitled "The unforgettable story of the seizure to the defaulter Mario Costeja Gonzalez that happened in 1998." And, as you might imagine, he wasn't too happy about some of the comments, and with this newfound power that he helped create in hand, he demanded that Google also take down links to such comments (most likely including that article linked in this paragraph).
And here's where it gets fun: Google refused. And so Costeja went to the Spanish Data Protection Authority to complain... and the Spanish DPA rejected his claim, noting that this information is now relevant in part because Costeja himself made it relevant again.
Now the DPA finds that there is indeed a preponderant interest of the public in the comments about the famous case that gave rise to the CJEU judgment of May 13, 2014 – and expressly reminds that the claimant itself went public about the details.
So, yes, the right to be forgotten has now made the story that was "successfully" forgotten originally so newsworthy that it may no longer be forgotten, and in fact is much more widely known. I think we've heard of some term for that before...
We've seen plenty of advances in game algorithms that make us humans look pretty weak compared to the best chess (and checkers and poker and RPS and air hockey and Flappy bird and...) playing computers. Computers aren't having any fun beating us at all these games, but they do it nonetheless. As always, let's just hope they figure out quickly that no one wins at thermonuclear war.
Amazon has come up with a rather ingenious way to give its own Fire TV streaming video devices a leg up in the market place: stop selling major competing products. In a letter sent this week to the company's marketplace sellers, Amazon announced that it would no longer be allowing new listings for either the Chromecast or Apple TV starting today, and that existing retail stock of both products would be discontinued at the end of the month. Google of course just unveiled two new versions of the Chromecast, which has been historically outselling Amazon's own streaming devices.
Amusingly, Amazon unloads what has to be one of the larger piles of ambiguous bullshit in defense of an anti-competitive position seen in some time:
"Over the last three years, Prime Video has become an important part of Prime," Amazon said in the e-mail. "It’s important that the streaming media players we sell interact well with Prime Video in order to avoid customer confusion."
Hilarious. Except it's up to developers to embed Chromecast support into their services and apps, and both Google and Apple publish open software development kits that allows any application to be utilized on both devices. In other words, it's Amazon's choice that Chromecast and Apple TV won't play nicely with Amazon Prime Instant Streaming. It has nothing to do with the devices not "interacting well" with Amazon's services. Bloomberg even helps prop up this nonsensical explanation further by repeating the idea that Prime Video "doesn’t run easily on rival’s devices."
Meanwhile, on what planet exactly are you "avoiding customer confusion" by suddenly removing access to hugely popular, competing products?
Apparently other streaming competitors like the Roku and game consoles have yet to see Amazon's ire and will remain sold, for now. Obviously none of this is the end of the world, since Amazon controls just 1% of the overall retail market and these devices can be bought at a long-list of retail alternatives, including Apple and Google themselves. Still it's an utterly-idiotic decision that's sure to invite antitrust scrutiny at worst, and an absolute shit storm of negative PR at best.
By now you're probably familiar with the narrative pushed by some ISPs that they are somehow owed a cut of advertising and content revenue simply because content company traffic touches their network. The idea that ISPs should be allowed to double dip in this fashion was an idea first floated by former AT&T CEO Ed Whitacre, who truly set off the net neutrality fight in the States back in 2005 by proudly and stupidly declaring that Google shouldn't be able to "ride his pipes for free." The narrative is still often used here in the States by net neutrality opponents, usually with Netflix portrayed as the hungry, selfish bogeyman.
The idiotic belief that content companies should be charged an additional "telco tax" to fund network upgrades has since wormed its way into pampered, duopoly telco board rooms worldwide. The latest case in point: Caribbean and South Pacific ISP Digicel has started blocking Google and Facebook ads from appearing on the company's mobile network in the apparent belief that the service provider is owed a slice of these companies' ad revenues. In a notice posted to the Digicel website, this move is framed as something that was motivated purely for altruistic, pro-consumer reasons:
"(Digicel is) deploying ad control technology at the network level on its networks across the globe to ensure a better experience for customers and to encourage the likes of Google, Facebook and Yahoo to help connect the 4.2 billion unconnected people across the globe. Ad control technology benefits both consumers and network operators alike. With ads using up as much as 10% of a customers’ data plan allowance, this move will allow customers to browse the mobile web and apps without interruption from unwanted advertising messages."
What sweethearts. Of course, the notice then proceeds to make it clear what this is really about. And that's Digicel and billionaire owner Denis O'Brien's belief that they are owed a cut of content company ad revenue simply because content company traffic touches their network:
"Companies like Google, Yahoo and Facebook talk a great game and take a lot of credit when it comes to pushing the idea of broadband for all – but they put no money in. Instead they unashamedly trade off the efforts and investments of network operators like Digicel to make money for themselves. That’s unacceptable, and we as a network operator, are taking a stand against them to force them to put their hands in their pockets and play a real role in improving the opportunities for economic empowerment for the global population.”"
O'Brien's been mentioned by Techdirt previously for attempts to sue satirists for so much as joking about him, so hopefully he doesn't take offense when I note that both he and Digicel are utterly full of crap here. The cornerstone of the ISPs' flimsy entitlement argument almost always involves claiming that companies like Google, Netflix, and others get a "free ride" on ISP networks. We've debunked this idea time and time again, even going so far as to urge these folks to pay Netflix's bandwidth bill for a month if they truly believe content companies don't pay for bandwidth and transit. Strangely, we've yet to be taken up on the offer.
Of course, the idea that Google, which is spending billions on wireless service and fiber to the home, "puts no money in" is laughable. Not only do these companies pay plenty for bandwidth, they own half-a-planet's worth of transit and content delivery networks at this point; and that's before you even get into their last-mile broadband efforts, where they're busy exploring everything from 3.5GHz wireless experiments to broadband by hot air balloon and drone in a quest to expand their global ad empires.
Of course, many of these efforts challenge the stranglehold legacy telecom companies have enjoyed for a generation or more, and the predominant response to this new economy evolution has been not to compete -- but to pout. Indeed, O'Brien's tirades are little more than the crying of a pampered child who is -- obviously for the first time in a long while -- being told he's not able to eat the entire carton of ice cream in one sitting.
Almost exactly a year ago, Techdirt wrote about Google's decision to drop the use of news snippets from certain German publishers, who were members of the collection society VG Media, in a long-running dispute over "ancillary copyright", also known as the Google tax. VG Media lodged a claim against Google with Germany's competition authority, the Bundeskartellamt, in the hope the authorities would force Google to put the snippets back by licensing them. An interesting post on the Disruptive Competition (DisCo) Project Web site notes the Bundeskartellamt has now issued its ruling, and said that it will not open formal proceedings against Google over this matter:
The answer of the antitrust watchdog is simple: if an online service does not want to acquire a license for the display of snippets and hence only displays search results in a more limited, shorter version, it can do so. There is nothing in antitrust law that would prevent companies from doing so, even if they are found to be dominant on a given market.
Google announced that in future it would show search results relating to the websites of press publishers that were represented by VG Media in the legal dispute only in a reduced form if the publishers did not agree to a free-of-charge use of their work. Google justified this by claiming that otherwise it ran the risk of being sued for breaching the ancillary copyright.
The Bundeskartellamt considers this to be an objective justification for Google's conduct. Even a dominant company cannot be compelled under competition law to take on a considerable risk of damages where the legal situation is unclear.
The rest of the DisCo post explores research that shows the harmful effects Spain's Google tax has had on publishers in that country -- something that Mike wrote about back in July. The author of the DisCo analysis, Jakob Kucharczyk, has a good encapsulation of the problem common to all these attempts to introduce ancillary copyright:
The underlying flaw in this strategy is that these legislative proposals misuse copyright for industrial policy purposes. It remains unclear which problem or market failure these laws actually try to solve.
The question is: How long will it take European governments to grasp this point? And how much of their publishing industries will have disappeared when they finally do?
Google Fiber continues to expand and bring much needed competitive pressure to (and public conversation about) duopoly-logjammed broadband markets. Most recently the company stated it was striking preliminary agreements with San Diego, Irvine, and Louisville, negotiating "fiber hut" placement, coordinating install logistics, and getting cities to sign off on franchise deals. The company also recently announced that it had struck a preliminary deal with Tempe, Arizona, laying the groundwork for the deployment of thousands of miles of new fiber in the city, bringing Google Fiber's potential footprint to sixteen cities.
"It's unfortunate that the Tempe City Council is willing to favor a new entrant into the market, and in doing so appears to have violated federal and state law. The waivers granted by the City also give Google Fiber a free pass on obligations that affect public safety; such as emergency alert messaging and protection of subscriber privacy."
Cox has subsequently followed up this early whining with a new lawsuit accusing the Tempe city council of violating the law. According to the suit (pdf), Tempe violated federal law "by establishing a discriminatory regulatory framework" that gives Google Fiber preference over traditional cable companies:
"Tempe’s bald assertion that Google Fiber is not a cable operator is incorrect," Cox argued. "And based on this incorrect assertion, Tempe’s regulatory scheme allows Google Fiber to provide video programming service to subscribers in Tempe under terms and conditions that are far more favorable and far less burdensome than those applicable to Cox and other cable operators, even though Cox and Google Fiber offer video services that are legally indistinguishable."
Here's the thing though: reports out of Arizona indicate that the Tempe city council's vote opened the door for companies like Cox to negotiate their own, new agreements with the city. Indeed, nothing stopped incumbent ISPs from striking new gigabit fiber deployment deals before Google Fiber, they just lacked the competitive incentive to do so. And while some mega-ISPs originally whined about these deals, they quickly quiet down once they realize these new potential deals let them cherry pick broadband deployment (read: just wire high-end developments), something that pre-Google Fiber days used to be considered a bad thing. Note these recent comments by AT&T:
"In the past if we wanted to go into a city environment, the requirement was you build out the entire city," Stephenson explained in a keynote at the J.P. Morgan Global Technology, Media and Telecom Conference. Doing that requires a huge capital investment, one that AT&T felt it couldn't make, he noted. Google's entry into Austin, in particular, enabled AT&T to ask the city for the same terms as Google Fiber received. "Google came in and was very targeted in where they wanted to deploy fiber, and they got municipal endorsement (on that). …We said we'll take the same deal that Google got. And we got the same deal that Google got," Stephenson said."
So yes, under the din of enthusiasm over Google Fiber there is a conversation nobody seems to want to have about the problem of cherry-picked next-gen broadband deployment, but that's obviously not what Cox cares about. Cox sees something in local Tempe law that will allow it to bog Google Fiber's progress in Tempe down in the courts (Google Fiber is also slated for Cox's turf in Phoenix, where it has not filed suit). Cox could simply take Google Fiber's market entry as a challenge to negotiate a new citywide deal and up its own game, but apparently the cable operator thinks that hand-wringing and wasting everybody's time with lawyers is the more sensible tactical option.
France's privacy regulator thinks it should be able to control what the world sees in Google's search results. Back in June, the regulator said Google must apply the "right to be forgotten" ruling across all of its domains, not just Google.fr, etc.
Google had argued that around 97 per cent of French users use Google.fr rather than Google.com, that CNIL was trying to apply French law extra-territorially and that applying the RTBF on its global domains would impede the public’s right to information and would be a form of censorship.
But France seems intent on standing up for the 3%. The regulating body has rejected Google's appeal and declared its intent on bending the world to its interpretation of the RTBF ruling. As it sees it, what's good for France is good for the rest of the connected world. And since all roads lead through Google, a deletion honored at Google.fr must also be delisted at Google.com
Geographical extensions are only paths giving access to the processing operation. Once delisting is accepted by the search engine, it must be implemented on all extensions, in accordance with the judgment of the ECJ.
If this right was limited to some extensions, it could be easily circumvented: in order to find the delisted result, it would be sufficient to search on another extension (e.g. searching in France using google.com) , namely to use another form of access to the processing. This would equate stripping away the efficiency of this right, and applying variable rights to individuals depending on the internet user who queries the search engine and not on the data subject.
In any case, the right to delisting never leads to deletion of the information on the internet; it merely prevents some results to be displayed following a search made on the sole basis of a person’s name. Thus, the information remains directly accessible on the source website or through a search using other terms. For instance, it is impossible to delist an event.
Yes, delisting at one domain means it's still accessible at others. That's the way these things are supposed to work. Perhaps the government bodies involved in this decision might have considered the unintended side effects before deciding RTBF was a great idea with minimal flaws.
The general tone of the regulator's response is that Google is being deliberately obtuse when it claims compliance at Google.fr (for example) is following the letter of the law. The French governing body wants Google to follow the spirit of the law, which means basically anticipating various governments' next moves after another hole in their "forget me now" plan presents itself.
CNIL then makes this disingenuous statements about its decision.
Finally, contrary to what Google has stated, this decision does not show any willingness on the part of the CNIL to apply French law extraterritorially. It simply requests full observance of European legislation by non European players offering their services in Europe.
If this is what it's actually requesting, complying at French domains would be all that was required of Google. But it isn't. It's asking for "full observance" and then leaving it up to Google to comply with requests in countries where the Right to Be Forgotten isn't recognized as an actual "right."
Those behind the push for a right to be forgotten should have seen this coming. They also should have recognized the limits of their desires. Pushing Google to delist any RTBF request across all domains allows Europe to decide what can and can't be seen (at least through Google's search engine) by the rest of the world. And yet, the regulating body calling for this ridiculous "solution" has the gall to claim it's not actually applying its decision extra-territorially, but that Google's global reach somehow obliges it to do this "voluntarily," if only to maintain the consistency regulators had in mind when they started enforcing the "right to be forgotten."
The deflectionary reminder that the content isn't actually deleted from the web is a cheap dodge. What's never acknowledged in these rulings is that removing links from search engine results is pretty much the same thing as removing it from the original websites. If search engines can't "find" it, it ceases to exist for all intents and purposes. Giving people the power to selectively edit the web without even acquiring a court order was -- and is -- a bad idea. The EU continues to assert the general public has the right to rewrite their own history, and now, with decisions like these, it's forcing the rest of the world to play along with these edited narratives.
Digital Music News has an unfortunate story that we've heard too many times before: that of an independent musician successfully building a following... only to do a deal with a major label and see it all come crashing down. What's interesting is that the artist, Terra Naomi, was willing to lay out all of the details. It's worth a read, as it's a story that is pretty common. That is not to say that signing a major label deal is necessarily a bad thing. For some artists it may be the right decision. But the way that major labels work is that you'll only get enough attention for the label to determine if you're "the next big thing" where all its revenue will come from for the next few years... and if things don't seem to be going that way, you'll be pushed aside quickly. The standard stat given is that 90% of major label deals "fail." That does not mean they are not profitable for the label. The way RIAA accounting works, the labels can make out like a bandit on many of those record deals, while the artist gets hung out to dry. That appears to be the case with Naomi as well.
She points out that she was one of the first artists to build up a large fanbase solely based on her YouTube and MySpace accounts. Here was her most popular song, Say It's Possible:
In the article, she talks about how she was connecting with fans and giving them a reason to buy. She talks about using YouTube to directly communicate with her fans, answering their questions, sending them messages and the like. And then, Universal Music came calling. And she made the very reasonable decision to sign with them, noting that while she had just pressed her own EP and quickly sold 5,000 of them in the first month they were available, she was still in debt, and a $250,000 advance was hard to pass up. It's easy to mock this decision, but you're probably not the one sitting there in debt with $250,000 on the table. That's why it's so tempting and why so many artists jump at the opportunity. It's not a crazy decision to make -- but it may present long term challenges, which is exactly what Naomi discovered.
Despite attracting attention for her success on YouTube, the label basically (1) had no understanding of YouTube and (2) recommended that she stop connecting with her fans. In other words, the exact opposite of what artists need to be doing in this internet connected era:
Contributing further to their feelings of betrayal was the mandate that came from my team at the label. They needed me to be “less accessible” and more untouchable. All these kids on YouTube saw me as an equal, as “one of them” – did I want to be a YouTube star, or did I want to be a rock star? They threw down the gauntlet, and there was no question in my mind. I wanted to be a rock star.
I handed over my mailing list and social media logins to the record label. I trusted this team of professionals to grow it into something much bigger than I could ever hope to create on my own. I backed off, disappeared, focused on writing songs and hanging out with the “right” people rather than connecting with my fans and the community I’d grown to love and depend on, prior to signing my deals. I figured I’d play by their rules for a little while, build my career into something even bigger, and reunite with my community once the label was satisfied with my rock star status.
Not surprisingly, it didn't work out that way. The label also pushed her to make a more commercial album, which she hated:
The producer I worked with told me we only had one shot, and I needed to make the album he wanted to make – with its “radio-ready” production – and once I had a few hits, I could make any album I wanted. So I made the album he wanted to make, and things didn’t happen the way he said they would. Instead of the big commercial radio success that would give me the freedom to seamlessly transition into the music I truly wanted to make, I had a big commercial flop (I think we sold something like 25,000 albums), an album I didn’t like, and I’d wasted what could have been the biggest opportunity of my life. The exposure I built independently on YouTube was more than the record label ever did for me, and I couldn’t believe I’d been so willing to hand it over for a longshot gamble on mainstream stardom.
And, of course, once she finally got out of the major label system, the audience that she had originally connected with, but forsaken, had moved on. As she notes:
My biggest takeaway from this time was a lesson in authenticity. It’s tempting to listen to people who want to change us, even just a little bit, and steer us in a direction that isn’t authentic. It’s easy to doubt ourselves, especially when we’re just starting out. We think people with more experience know better than we do about what’s best for us, and it’s simply not the case. We fall for the hard sell, the glitz and glamour, but for every massive major label success, there are dozens of disappointments and disastrous failures.
This isn't a huge surprise. For well over a decade we've been pointing out stories of successful artists who have built up huge fan bases online -- and the one factor that shows up again and again and again is authenticity. That's a huge part of the whole idea of connecting with fans. Actually being authentic is a great way to connect with like-minded fans, but it has traditionally gone against the cookie-cutter model of the major labels (though, to be fair, some are finally starting to figure this out, if only way too late).
Either way, Naomi's story is a good read, and should be worth thinking about for others who are tempted by the deals presented to them when they're first building a following. Put it in the group with the stories about RIAA accounting that further explain how a big advance may not actually be so big once you understand all the details.
Last week we wrote about receiving our very first Right To Be Forgotten notice from Google, disappearing an earlier post that talked about articles in the NY Times that had been disappeared thanks to other RTBF requests. Yes, someone used a RTBF request to remove our article about the RTBF which was referencing other articles that someone had removed via a RTBF request.
And... yesterday we received a notification that this new article was also chucked down the memory hole thanks to a RTBF request, so that anyone who searches on a particular name in Europe will no longer see that article either. At this point, it's fairly clear that it's Thomas Goolnik who is making all of these RTBF requests, as he's the only individual named. We don't think either of our articles should be removed even under the EU's laws that allow for a RTBF, because those laws only apply to out of date/irrelevant information, and the fact that Goolnik has just now made a RTBF request in an attempt to censor us and to edit his own Google results is not obsolete information and is entirely relevant and newsworthy.
I figure it's highly likely that it won't be long before we get a notice telling us that this article, too, has been removed, so I'd like to add a special note to the Google RTBF reviewer reading this post: We are purposely not mentioning the details of the original story that Thomas Goolnik would no longer like to be associated with. Even if you believe that information is no longer relevant, this article does not discuss that. Instead, it discusses newsworthy and relevant information about Thomas Goolnik today, which is that he's filing a series of right to be forgotten requests to Google on any story that mentions his attempts to use the RTBF to delete his history. The original EU ruling clearly states that that when a search engine is evaluating a RTBF request, that it should see if the data is "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed." This is not about irrelevant information from the past. This is about what appears to have happened this week or last.