Elon’s (Good?) New DMCA Policy Appears To Be The Result Of Lots Of Confusion & Misunderstanding

Copyright

from the dmca-policy-made-by-feelz dept

On Monday, I saw Elon Musk tweet the following, and initially thought that he might have actually made a good policy decision for once, and planned to write up something about Elon doing something right (contrary to the opinion of some, I’m happy to give him credit when it’s due):

Punching back against DMCA abusers is a good policy (and one that the old Twitter was willing to go to court over — though very early Twitter was less good about it). So, in theory, suspending accounts of those who engage in “repeated, egregious weaponization” of the DMCA seems like a good policy and Musk should be given kudos if that’s how the policy is actually put into operation.

Though, the actual details here are kind of a mess, and it’s possible that instead of putting in place a good policy, Musk might have (instead!) opened up Twitter to potentially massive liability.

This came about over a dispute between two Twitter users, but the details are now gone, as Twitter suspended one account, and it appears the other account deleted all the tweets about this dispute (though I’ve been able to dig up a few screenshots).

One account, @Rainmaker1973, is one of thousands of aggregator accounts that basically find other people’s content and post a constant stream of it to their feed. Rainmaker has 1 million followers, so is a pretty large account. Looking over Rainmaker’s feed, you can see that the account links to source material (through tracked buff.ly links). When it’s posting videos, it appears to embed the original video, rather than re-uploading it, though the way Twitter handles that is sometimes a little confusing. It just puts a little “from @OriginalAccount” in small letters underneath the video, with a link to that account’s profile page, but not to the tweet where the original video was. I’ve never quite understood why Twitter handles video embeds this way, but it does. Here’s one example, with the Twitter-appended attribution highlighted:

For photos, that’s not how it works. You basically have to reuse the photos (and if they’re hosted somewhere else, upload them to Twitter). That’s what the Rainmaker account did here, with a photo that originated on Facebook:

Is that infringing? Eh… I’d say that the Rainmaker account has pretty strong fair use claims much of the time. The account also appears to lean towards public domain images (such as from NASA) and some Creative Commons-licensed images. But fair use is always fact-specific, so it’s difficult to say if none of the accounts tweets might violate copyright law.

What appears to have happened, based on what many others have written, is that the Rainmaker account posted a video from another account, @NightLights_AM, that specialized in images and videos of the northern lights. While these tweets have since been deleted, note that the video in the image does not show the little “from” line, as it would if it were embedded directly from Twitter.

Now, unfortunately, since it’s all deleted, we can’t see exactly how the video is embedded. Rainmaker says it’s embedded, not uploaded. It doesn’t have the “from” line at the bottom in that screenshot, but… it might still be from a Twitter embed, because Twitter (confusingly!) does not show that “from” line in the video if it’s being quote tweeted, as is the case here.

So, based on all that, there’s a decent chance that the DMCA notice was somewhat iffy. I recognize that lots of people don’t like aggregators like the Rainmaker account, but if he’s just using an existing upload from the official account as an embed, then it’s clearly not actually infringing.

It is quite possible, though, that most people don’t understand how video embeds of other Twitter videos work on Twitter (it’s confusing!), and so it wouldn’t surprise me if the NightLights account didn’t even realize it was an embed of the original, and out of frustrating of this large aggregator account getting all the traffic for its video, sent a good faith (but mistaken) DMCA notice.

In the now-deleted tweet you see above, the Rainmaker account says it reached out to the NightLights account, and NightLights asked for money (likely for a license). Again, assuming Rainmaker was just embedding, there is no need for a license. It’s literally just using Twitter in the way it was intended, and in a manner that NightLights already granted a license for. Somewhat confusingly, in a later tweet, the Rainmaker account claims that NightLights didn’t actually want money and instead said that NightLights was trying to shut down his account:

For what it’s worth, the guy behind NightLights told TorrentFreak that Rainmaker is misrepresenting their conversation, and that it was Rainmaker who first proposed paying, if NightLights would rescind the DMCA notice:

Mauduit informs TorrentFreak that after sending the DMCA notice to Twitter, Massimo initiated contact and suggested that he should pay an amount to have the report retracted “since the situation for him was so dire.”

Mauduit says that since the offer came Massimo, that doesn’t constitute blackmail. A few hours later Massimo accused Mauduit of blackmail on Twitter, Mauduit says.

“I asked him to compensate me fairly for the use of the material. So at that point, that was purely business related and politically correct,” Mauduit says.

Either way, Twitter’s head of trust and safety quickly told the Rainmaker account that, despite his fears, the company would not suspend his account:

This is also a good policy (so kudos to Irwin and Musk on continuing this aspect of old Twitter’s policies). She also noted in another tweet that the Rainmaker account “is not at any risk for suspension.”

Of course, “pirating / egregious illegal behavior” is somewhat in the eye of the beholder. And so is… “blackmail.” Yet, about an hour after Ella’s tweets, Musk himself noticed Rainmaker’s tweets and announced that he would “suspend” accounts for “blackmail.”

Again, in a vacuum, this could be good policy. Suspending egregious copyfraudsters who abuse copyright to shake people down or silence them makes sense. And DMCA abuse for extortionate behavior does happen unfortunately often. As does abusing the DMCA to silence others over non-infringing speech. We’ve covered many, many such cases over the years.

So, having a policy that pushes back on that abuse of copyright law is good —and another nice thing you can say about Elon Musk is that he’s been quite good about recognizing the problems associated with patent and copyright law. Other companies have pushed back on copyright abuses as well, such as how Automattic (the company behind WordPress, and also the company that hosts Techdirt) has spent years fighting back against DMCA abusers. But it has a clear process for doing so, rather than the whims of an impulsive owner.

In this case, though, Elon appeared to take Rainmaker’s (slightly confused) word for what happened, and flat out suspended (temporarily) NightLights for what appears to have been a good faith DMCA notice, followed by a discussion initiated by Rainmaker regarding payment.

As I was finishing up this article, the NightLights account was actually reinstated, though the guy says he’s now considering leaving the platform:

So, given all this, the concept behind the policy is good, but there’s not much evidence that NightLights was actually actually “blackmailing” Rainmaker. From what was public (and mostly now deleted), it looks more like the account mistakenly thought that its content was used in an infringing manner due, in part, to Twitter’s own confusing presentation of embedded videos, and filed a good faith, but mistaken, DMCA notice. When Rainmaker contacted NightLights to try to get the DMCA strike removed (out of a fear that it would take down the account), the began a discussion on a licensing fee, which again seems reasonable if NightLights actually thought the use was infringing.

Also, this seems to have no angered others who were fans of the NightLights account:

Once again, content moderation at scale is impossible to do well because people are going to be mad at you on both sides of the equation.

In the end, this looks like a lot of miscommunication across the board, in part from people who aren’t fully aware of how Twitter or copyright law actually work. The end policy — don’t put up with shit from those who abuse the DMCA process — is actually great. But it really doesn’t look like NightLights was abusing the DMCA, just confused about how Twitter worked.

And because of the somewhat less-than-well-considered way in which Twitter under Elon is acting, if NightLights had a legitimate claim (and again, I don’t think it does in this case), quickly suspending an account for filing a real DMCA claim could open up Elon and Twitter to pretty significant liability. Contrary to popular belief, companies that receive a DMCA notice do not need to take down the content. But if they don’t, they can no longer use the DMCA’s 512(c) safe harbor, which is a risk if the case went to court. So refusing to take down something upon notice is a legal risk, and the kind of thing a large company like Twitter would normally have a copyright lawyer review.

The other potential issue is that if Twitter makes it a habit to suspend accounts that send good faith or legitimate DMCA notices, it could very much open them up to claims that they do not have a valid “repeat infringer” policy, as required by 512(i). Suspending one account for sending a good faith DMCA almost certainly won’t trigger that issue, but having Elon flat out say that Rainmaker’s account “won’t be” suspended could be read to mean that Twitter is ignoring its repeat infringer policy with regards to at least that account. And, I could see copyright lawyers trying to argue that this is an example of how Musk is willing to ditch the 512(i) policy for accounts he likes. At the very least, you can bet that these kinds of impulsive policy decisions will be used in court by copyright litigants. Perhaps from Hollywood studios who noticed that, last fall, amidst all the turmoil, Elon’s Twitter seemed to be ignoring many DMCA notices about accounts posting entire Hollywood movies.

In short, impulsive decisions around DMCA policy, made without first going over things with an actual copyright lawyer, can open up a company like Twitter to quite a bit of liability. But this is the Elon Era, in which YOLO seems to be the general ethos, and if it happens to add to yet more legal liability? Well, just toss it on the pile.

Filed Under: aggregators, blackmail, copyfraud, copyright, copyright abuse, dmca, elon musk, embedding, repeat infringer policy, safe harbors
Companies: twitter

Senator Klobuchar’s Latest Bad Idea: Letting Smaller Journalism Outlets Demand Payments For Links

Journalism

from the this-is-a-bad,-bad-idea dept

Look, I’m a small journalism outfit. A very small one. So, in theory, a law that effectively lets me demand free cash from Google and Facebook should be a good thing for me. But, it would actually be a disaster. That’s why I spoke out against the idea last year when Senator Amy Klobuchar and Rep. David Cicilline first floated the Journalism Competition and Preservation Act (JCPA). Earlier this year, we had a guest post from Library Futures explaining why the JCPA would be lose-lose legislation. In short, it’s a link tax bill, similar to the one written in Australia to appease (and enrich) Rupert Murdoch. It basically says that publishers can band together, with an antitrust exemption, to demand fees from bigger, more successful internet companies.

And, of course, Klobuchar (as is her usual method of operation when pushing bills that fundamentally break the internet) has decided to move forward with it anyway. She recently introduced a new version of the JCPA, with the one major change being that it only applies to smaller news orgs — those with under 1,500 employees. This would leave out the Fox Newses of the world, along with the NY Times, Washington Post, etc. At best, you can say that Klobuchar realized the original bill was just about wealth transfers from big internet companies to big media companies, and carved them out of the deal.

Of course, that also seems like a weird way to set up this bill with potentially catastrophic consequences. We’re at a time when hedge funds — most notably Alden Capital — have been buying up newspapers and laying off tons of people while trying to squeeze cash out of the remaining husks. And, this bill basically says “buy up large newspapers and cut them to under 1,500 employees.” Indeed, remember, the head of Alden not that long ago was writing opeds saying that Google and Facebook should just pay him money. And here’s Amy Klobuchar saying “sure, you get free money just as long as you fire enough people first.“

That’s crazy. It’s so crazy that even the Newsguild, which has been supportive of this general concept, is like “hey wait a second, this is going to lead to journalists getting fired.”

On top of that, as soon as you get into declaring which organizations are “journalism” organizations, and which ones get this special benefit from the US government, you’ve entered dangerous 1st Amendment territory. We’ve had this issue in the past with other laws that try to carve out “covered” journalism entities. Part of the 1st Amendment is that the government cannot declare who is and who is not a journalist (otherwise it would be way too tempting to carve out journalists most critical of the government). Yet, this bill spends pages declaring who gets to be considered a journalism organization for the purposes of the law. That’s the first big problem.

But, the much bigger problem is that the bill is trying to break the internet and establish the ability to tax links.

The main function of the bill is to allow news orgs to team up, force internet companies that link to them into mandatory arbitration, and force them to pay the journalism organizations for linking to them. For linking to them. Literally for sending them traffic. The bill says that each side submits their proposal for how much the internet companies should pay the news companies, and then the arbitrator picks one side’s proposal.

But, again, let’s go back to what this is — what the internet companies are being forced to pay for. They are being forced to pay to send other websites traffic. This is ludicrous.

News orgs beg these sites for traffic. They hire SEO people to try to get more traffic. Now they’re also getting to FORCE the internet companies to PAY them for that traffic too?

Some of this may feel hidden within the bill, so let me walk you through the key parts. First, it defines a covered “online platform” as any website, mobile app, or internet services that aggregates or directs users to news articles. That is, any online tool that sends traffic to news sites.

ONLINE PLATFORM.—The term ‘‘online platform’’ means a website, online or mobile application, operating system, digital assistant, or online service that aggregates, displays, provides, distributes, or directs users to news articles, works of journalism, or other content, or portions thereof, generated, created, produced, or owned by eligible digital journalism providers.

To be subject to the mandatory arbitration, such an online platform has to have at least 50 million monthly active users and a market cap over $550 billion (hilariously, currently this would exclude Meta/Facebook, since its market cap has dropped a ton in the last few months and now sits well below $500 billion). So, at this point, it basically applies to Apple, Microsoft, Google, and Amazon properties.

Those are the companies that will be forced to pay up under this scheme. Then, it allows media orgs (which meet certain definitions included in the bill, including having fewer than 1,500 employees) to team up with one another to form a “joint negotiation entity.”

IN GENERAL.—An eligible digital journalism provider shall provide public notice to announce the opportunity for other eligible digital journalism providers to join a joint negotiation entity for the purpose of engaging in joint negotiations with a covered platform under this section, regarding the terms and conditions by which the covered platform may access the content of the eligible digital journalism providers that are members of the joint negotiation entity.

Okay, so now you’ve got a joint negotiation entity that can negotiate with the four companies listed above. But what the fuck are you negotiating for? The “terms and conditions by which the covered platform may access the content of the eligible digital journalism providers.” Access? What the hell does “access” mean under this law?

¯\_(ツ)_/¯

I mean, it’s not defined anywhere, because why define the most critical part of this bill? The answer is that the drafters know that it’s ridiculous to come out and say that what they really mean is you need to negotiate over how much these companies will pay to link to digital journalism outfits.

But, linking is a fundamental feature and right on the open internet. Setting up any sort of scheme where websites are being forced to pay to link is fundamentally against the nature of the open web. It sets us off down a very dangerous and very slippery slope.

Anyway, once you have this joint negotiation entity, you literally get to demand payment for links (euphemistically called “access”). And if Google or whoever is like “fuck you, it’s a link, we’re sending you traffic already, why should we pay you for already helping you out?” the joint negotiating entity can force the companies into arbitration where each side submits how much they should pay, and the arbitrator has to pick one side (and not anywhere in the middle).

Also, not agreeing to negotiate — again, to pay for something that no one should ever pay for — under this law is deemed as “not conducting negotiations in good faith.”

And how much are the companies supposed to pay for sending you free traffic? The “fair market value” based on “the investment of the digital publisher.” Really.

This whole thing is based on a fundamental lie that you need a license to link. But that’s just not true. Copyright does not cover links. There is no license to link. And yet the bill pretends there is one:

At any point after a notice is sent to the covered platform to initiate joint negotiations under subsection (a)(2), the eligible digital journalism providers that are members of the joint negotiation entity may jointly deny the covered platform access to content licensed or produced by such eligible digital journalism providers.

Deny access? What? That means… deny them the ability to send you traffic? I mean, look, if digital publications don’t want traffic from Google, they can just set that up technically on their site with robots.txt blocking indexing, and then sending any referral traffic from Google into a black hole. But, fundamentally, this bill is just confused about linking. You don’t need a license to link. You don’t need a license for snippets and the headline. That’s fair use.

The really funny thing about this bill is it refuses to admit it’s a copyright bill in disguise. Platforms have fair use rights to post a snippet of news content along with a link, and the link is just a fundamental way in which the internet works. One that this bill is attempting to break.

Also, that section above where, somewhat hilariously, digital publications can magically tell the big online platforms they are denying them “access,” the bill says that the platforms CANNOT JUST REFUSE TO LINK. I only wish I were joking.

No covered platform may retaliate against an eligible digital journalism provider for participating in a negotiation conducted under section 3, or an arbitration conducted under section 4, including by refusing to index content or changing the ranking, identification, modification, branding, or placement of the content of the eligible digital journalism provider on the covered platform.

Congrats, Senator Klobuchar, you’ve just created a must-carry provision for news aggregators. And here’s the best part: the misinfo providers out there can now effectively force their way into Google News by forming one of these joint negotiating entities, and then pointing to this section and saying “Google refuses to index my content.”

Who knew that Amy Klobuchar wanted to force disinfo peddlers into Google News?

Everything — and I do mean everything — about this bill is ridiculous. It’s a bizarre attempt to do an end-run around antitrust law, copyright law, and common carrier law… to force Google, Apple, Amazon, and Microsoft to pay for linking and sending traffic to digital publishers who are too incompetent to figure out how to properly monetize incoming traffic.

I can’t see how anyone thinks this is a good idea. And, again, I run one of the companies that in theory would “benefit” from this nonsense by getting free money.

I used to just think that Senator Klobuchar was ignorant about how the internet worked. But considering how frequently she releases absolutely ridiculous and dangerous bills about the internet, I’m beginning to realize that she is deliberately seeking to destroy it.

Filed Under: aggregators, amy klobuchar, antitrust, common carrier, copyright, jcpa, jouranlism, link tax, must carry, news

Microsoft Tried To Cozy Up To Newspaper Publishers… Who Are Now Claiming Microsoft Is Trying To Stiff Them

Copyright

from the they'll-always-want-more dept

A few months after the snippet tax was agreed to as part of the EU Copyright Directive, Australia indicated it wanted to take the same route. The government there planned to make Internet companies pay newspapers for sending the latter extra traffic, by imposing something called the News Media Bargaining Code. In a blog post from December 2020, Mel Silva, VP, Google Australia & New Zealand, gave a good analysis of why Australia’s proposed Code was antithetical to the way the Web worked, including the following:

It forces Google to pay to show links in an unprecedented intervention that would fundamentally break how search engines work. No website and no search engine pays to connect people to other websites, yet the Code would force Google to include and pay for links to news websites in the search results you see. This sets the groundwork to unravel the key principles of the open internet people use every day—something neither a search engine nor anyone who enjoys the benefits of the free and open web should accept.

A few weeks later, Google turned up the pressure, and threatened to make its search engine unavailable in Australia if the News Media Bargaining Code went ahead. At this point, Microsoft sensed an opportunity to make life harder for its rival in the online search market. Microsoft’s President, Brad Smith, published the following post of his own, stating that in contrast to Google:

Microsoft fully supports the News Media Bargaining Code. The code reasonably attempts to address the bargaining power imbalance between digital platforms and Australian news businesses. It also recognises the important role search plays, not only to consumers but to the thousands of Australian small businesses that rely on search and advertising technology to fund and support their organisations. While Microsoft is not subject to the legislation currently pending, we’d be willing to live by these rules if the government designates us.

The reason why Microsoft was happy to throw the entire Web under a bus became clear later in the post:

Microsoft will ensure that small businesses who wish to transfer their advertising to Bing can do so simply and with no transfer costs. We recognise the important role search advertising plays to the more than two million small businesses in Australia.

We will invest further to ensure Bing is comparable to our competitors and we remind people that they can help, with every search Bing gets better at finding what you are looking for.

Bing is Microsoft’s largely forgotten search engine. In the desperate hope that making things difficult for Google might encourage a couple of people to switch to Bing, Microsoft decided to cozy up to the newspaper industry that was hell-bent on undermining the Web. A few weeks after Smith’s blog post, Microsoft joined with European newspaper publishers to call for the Web to be weakened there too.

Given that cynical attempt to use bad legislation to attack its rivals, it is gratifying to see that Microsoft’s plan of working with newspaper publishers isn’t going so well, as reported here by the Frankfurter Allgemeine Zeitung (translation via DeepL):

The collecting society Corint Media wants to enforce the demands of press publishers for the ancillary copyright against Microsoft in court. The company announced in Berlin on Friday [1 April 2022]  that the step had been taken “after more than two years of talks without an acceptable result on an appropriate remuneration.”

Apparently, Microsoft had offered 700,000 euros for its 2022 use of newspaper material in the Bing search engine and MSN.com. The publishers, however, demanded 20 million euros. Microsoft had obviously forgotten that, as far as the copyright industry is concerned, coziness counts for nothing, and that enough is never enough.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon. Originally published on Walled Culture.

Filed Under: aggregators, bing, eu, germany, link tax, search
Companies: corint media, microsoft

Canadian Publishing Group Says France Has The Right Idea, Presses For Its Own Google Tax

Journalism

from the dividing-by-almost-zero dept

Canada is more than just a calmer, more apologetic version of the United States. It’s its own thing. But, more accurately, it’s a Britain + France thing. While Canada shares a common border with us, it’s still more Europe than US of A.

Every so often we’re reminded of its ties with the other side of the pond. This is one of those times.

French regulators recently decided Google owed French news sites for all the traffic it sends to them. It mandated “negotiations” between Google and French newspapers, but insisted the negotiations begin with Google getting out its wallet.

It appears Canadian lobbyists agree with France: Google owes them money.

A Canadian news industry advocacy group says that Canada would do well to follow France’s example in forcing internet search giant Google Inc. to pay news publishers for their content.

I guess this depends on how you define “do well.” This could backfire severely, resulting in no new revenue streams and fewer site visitors. Just ask Spain. That’s not “doing well.” If this means the group thinks it’s advisable to follow France’s example, it’s also wrong. But that’s the direction journalists are being steered by their advocates.

News Media Canada chief executive John Hinds said Thursday that the federal government will need to take a leadership role if the power dynamic between Google and publishers is to be changed.

This isn’t the first time Canadian journalists have demanded tech companies pay them for the traffic they send them. Three years ago, a Google tax was pitched to the Canadian government — one that included Facebook and Netflix in a proposal to tax companies who helped bring Canadian content to site users around the world.

Things are tough all over, thanks to a radical shift in, well… everything… since the beginning of the coronavirus pandemic. Hinds somehow believes an advertising giant will provide for everyone during a time when everyone’s advertising revenues are down.

Hinds said the collapse of advertising rates in the face of the COVID-10 global pandemic, at a time when people are reading news sites at higher rates than ever, highlights the problem.

“I think it’s a fundamental thing: We need to be paid for our content. We need to be compensated,” Hinds said.

Fair enough. Let your readers do that. If they’re not interested, it’s really not up to a bunch of other companies located elsewhere in the world to make up the perceived difference. Everything sucks everywhere at the moment. Wringing a few bucks out of Google isn’t going to reverse anyone’s fortunes. And the more newspapers that convince governments Google should pay for sending them traffic, the less they’ll all be making individually.

A Google tax isn’t a revenue stream. It’s not even a trickle. Here’s Nate Hoffelder’s estimate of how Google’s “billions” in profit would actually pay out for rent-seeking newspapers:

Google is making under 4 cents per search, and turning a profit of around a half a cent per search.

Of course, that is an average across all of Google’s search results, and it includes search terms and even whole verticals which are not monetized (Google News, for example). And that is also a global average and not based on EU revenues, so it is not 100% applicable. (And those calculations are based on a bunch of unsupported assumptions.)

Leaving those caveats aside, the point that matters is that news publishers want Google to pay for the use of their links and snippets. This means that Google would need to take that 3.7 cents and divide it between all of the relevant links returned with each click of the search button (after taking a cut for itself).]

Efforts like this are counterproductive. They’re unlikely to reverse the fortunes of failing news concerns and far more likely to convince US tech companies to avoid providing specific services for certain countries. If Canadian publishers want what France has, they’re only going to end up splitting the disappointment.

Filed Under: aggregators, canada, france, google news, google tax, john hinds, news aggregators, news publishers, snippets, traffic
Companies: news media canada

Just As Everyone Predicted: EU Copyright Directive's Link Tax Won't Lead To Google Paying Publishers

Copyright

from the duh dept

Look, not only was the following story totally predictable, but many of us directly warned the EU of what would happen if they instituted a “link” or “snippet” tax as part of the EU Copyright Directive. Of course, EU officials totally ignored all of the experts (or listened to a bunch of idiots in the publishing industry who insisted that “this time it will be different,” despite multiple examples of link taxes not working) and put a link tax into law anyway.

France has been the most eager to put the EU Copyright Directive into practice, and now that it’s about to establish a link tax for news aggregators, the one company such a link tax is mainly directed at (Google) has made it clear that (as it’s done with previous such taxes) it’s not planning to pay anyone to link to them (nor should it). Instead, Google has given webmasters (including publishers) greater control over how results linking to their pages will look — including letting publishers detail the types of snippets it will allow.

Previously, it was only possible to allow a textual snippet or to not allow one. We’re now introducing a set of methods that allow more fine-grained configuration of the preview content shown for your pages. This is done through two types of new settings: a set of robots meta tags and an HTML attribute.

Google has long allowed publishers to allow for a snippet or not, but now it’s also letting publishers designate a “maximum length” of the snippet, or a maximum video or image preview.

With that in place, Google has told publishers in France that in order to respect the new Copyright Directive link tax, it is removing all snippets unless the publishers opt-in via the tools mentioned above, to voluntarily choose to add back the snippets.

When the French law comes into force, we will no longer display an overview of the content in France for European press publishers, unless the publisher has made the arrangements to indicate that it is his wish. This will be the case for search results from all Google services.

Publishers have always been able to choose whether or not they want their content to be accessible through Google’s search engine or Google News. We have just put in place more granular webmaster settings that allow publishers to specify how much information they want to appear as a preview in the search results. Publishers around the world can use these new settings to choose the type of preview best suited to attract users to their site.

This is being framed by some as Google trying to “bypass” the EU Copyright Directive, but that’s nonsense. This is Google complying with the EU Copyright Directive. Again, this is similar to how it’s reacted in France and Germany, when similar link taxes were put in place. The problem is that the Eurocrats made a bunch of really dumb miscalculations here: first, they assumed that including snippets was more valuable to Google than it is to the publishers. It is not. Their traffic will decline without snippets, meaning many will quickly rush to opt-in to add them back. Second, they assumed that putting a tax on something wouldn’t change the incentives and that Google would just carry on offering the same snippets, but just paying for them. They were wrong.

Again, we went through all of this five years ago with the German link tax, and even though Google effectively did the same thing, when asked about this, I distinctly remember some EU politicians insisting that it would be different if the whole EU all agreed to a link tax, and that Google would have to pay. What’s incredible is that these same politicians will now whine and complain and lie, saying that Google is evading the tax when it’s actually complying with the law as written — and complying in the same way they complied with similar laws in the past. And, indeed, France’s Culture Minister has already put out a laughable statement arguing that in complying with the law, Google is violating it:

I call for a real global negotiation between Google and the publishers: the unilateral definition of the rules of the game is contrary to both the spirit of the directive and its text. I will speak very soon with my European counterparts to remedy this situation.

How hard is this to understand? If you make something against the law (aggregating news and posting snippets without a license), don’t be surprised if the companies who have been doing that stop doing that. You outlawed something, and so Google obeyed your new law and stopped doing it.

If the EU Parliament wanted a different outcome, perhaps instead of attacking those of us who warned this would happen, they should have listened to us. Apparently that’s just too difficult.

Filed Under: aggregators, article 11, article 14, controls, france, link tax, metatags, news, snippet tax
Companies: google

Push Resumes For An EU Google Tax, With The Bulgarian Government Leading The Way

Legal Issues

from the bad-ideas-never-die dept

When an idea fails, legislators resurrect it. The problem must not be with the idea, they reason. It must be with the implementation. So it goes in Europe, where the Bulgarian government is trying to push an idea that has demonstrably failed elsewhere on the continent.

Should the EU introduce an extra copyright for news sites, restricting how we can share news online? The controversy around this plan continues to brew – this time in the Council, where the member state governments are trying to find a consensus.

[…]

The Bulgarian Council Presidency is pushing what it calls a new compromise, instead of the choice of two options that their Estonian predecessors offered.

But upon closer investigation, the “compromise” looks mighty familiar: With exceptions for very short snippets and non-commercial use by individuals, as well as a shorter protection term than the Commission wanted, it looks much like the current German “ancillary copyright”, which almost all experts agree has been an abject failure.

The failure of snippet taxes/Google taxes is well documented, but never seems to deter further legislative efforts in the same direction. Google reacted to the initiative by dropping snippets from German news agencies, a move that produced a noticeable drop in traffic. German publishers called it “blackmail,” but the simplest way to comply with bad laws is to opt out. Similar things happened in Spain with its snippet tax. Google nuked its local Google News service, resulting in affected publishers demanding the government force Google to re-open the service and start sending them traffic/money.

This push in the EU Commission for a snippet tax deliberately ignores research showing link taxes don’t work, harm publishers, and are opposed by many of the journalists who would supposedly benefit from it. This is more than cherry-picking facts to support a Google tax. Pirate Party EU Parliament member Julia Reda (who wrote the post quoted above) previously uncovered reports the Commission tried to bury, including one that showed news aggregation services like Google News were a net benefit for listed publications.

At this point, it looks as though some form of snippet tax will eventually become EU law. Only half of the member countries oppose snippet taxes, and only a few of those are actively fighting the proposal. If it does become law, it won’t work out the way publishers believe it will. Instead, it will harm smaller publishers and smaller aggregators, resulting in a consolidation of power for the largest publishers and platforms. The EU has no leverage in this battle. Google won’t hang around for long if the situation is unprofitable and publishers will have to settle for taxing Yahoo, Bing, etc. for whatever traffic these search engines manage to send their way.

Filed Under: aggregators, bad ideas, bulgaria, copyright, eu, google tax, link tax, neighboring rights, snippet tax

EU Commission Hid Yet Another Report That Showed Its Assumptions About Copyright Were Wrong

Copyright

from the evidence-based-policymaking dept

For many years we’ve criticized copyright policymakers who rely on “faith-based” policymaking. That is, they believe that copyright is inherently “good” and refuse to consider any evidence showing harms from copyright that is too strong, or refuse to concede that there may be better ways to create incentives or to remunerate creators beyond copyright. The idea of actually having evidence-based copyright has long seemed like a pipedream — and apparently the EU Commission would like to keep it that way. Back in September, we wrote about how the EU Commission spent $400,000 on a study that showed unauthorized downloads had little impact on sales — and then refused to release the report, recognizing that it would undermine the narrative they were pushing in trying to expand anti-piracy laws.

And, now, another such “buried” report has been discovered. As with the last one, this new report was discovered by Pirate Party EU Parliament Member Julia Reda, though she used the standard EU Freedom of Information process that anyone else could have used. After discovering that last report, she made a request for all copyright related studies that the EU Commission had requested since 2013, even if they were unpublished. That initial request listed out some papers that were still in progress — including the one that Reda has now released. This study is one that a lot of news publishers almost certainly wished would have never seen the light of day — which might explain why the EU Commission kept it buried.

The report focuses on the question of news aggregators and what impact they’re having on news publishers. As you may recall, publishers around the globe — but especially in Europe — have been insisting that aggregators like Google News are somehow responsible for their own business failures, and are demanding that Google pay them for the awful crime of sending them traffic. The fact that these publishers could easily block Google from sending them traffic — but refuse to do so — reveals that they really do find that traffic valuable. But they still want payments on top of it, and will continue to demonize Google News and other aggregators until they get it. And, indeed, the EU Commission continues to suggest that forcing aggregators to pay publishers would be a good idea.

But, perhaps not surprisingly, the study that the Commission requested shows the exact opposite of what the publishers claim. Looking at situations in Spain and Germany — both countries that tried to force Google to pay — gives some real world evidence that is inconvenient for publishers and those pushing for these kinds of laws:

The available empirical evidence shows that news aggregators have a positive impact on news publishers’ advertising revenue.

The research goes through a number of different empirical studies to conclude this. It notes that there are two competing forces, and the empirical question is which force wins out. News publishers insist that aggregators work as a substitute for their sites, while aggregators (and others!) insist that they’re complementary, and that news aggregators drive more traffic, which the publishers can then monetize. It then cites a whole bunch of studies presenting empirical evidence that the complementary effects far outweigh the substitution effects. As the paper concludes:

We can conclude from this overview that the studies published so far contain no empirical evidence in support of the substitution hypothesis and thus no evidence that online aggregators have a negative impact on original newspaper publishers’ revenue. On the contrary, the evidence shows that aggregators may actually be complements to newspaper websites and may help consumer discover more news and boost the number of visits.

All of this seems like, damn, it would be kind of useful if you were trying to create good copyright policy. But instead the report was completely buried and hidden, while the EU Commission to this day continues to push for policies that insist the substitution effect is stronger than the complementary effect. Even though the evidence that the very same Commission asked for shows that’s untrue.

So, once again, it’s feeling like evidence-based copyright remains a pipedream. What’s unfortunate, though, is that in the past we felt it was a pipedream because no one was willing to do the research. Now it appears it’s a pipedream because policymakers, when shown the evidence, will do everything possible to hide it, rather than to use it to create more effective and reasonable copyright laws.

Filed Under: aggregators, copyright, eu commission, google tax, julia reda, link tax, news, news aggregators, snippet tax

European News Agencies Again Demand Google, Facebook, Etc. Pay Up For Sending Them Traffic

Say That Again

from the definition-of-insanity dept

Because it’s worked oh so well in the past, European news agencies are (again!) calling for service providers like Google and Facebook to start paying them money for sending them business.

Nine European press agencies, including AFP, called Wednesday on internet giants to be forced to pay copyright for using news content on which they make vast profits.

The call comes as the EU is debating a directive to make Facebook, Google, Twitter and other major players pay for the millions of news articles they use or link to.

“Facebook has become the biggest media in the world,” the agencies said in a plea published in the French daily Le Monde.

“Yet neither Facebook nor Google have a newsroom… They do not have journalists in Syria risking their lives, nor a bureau in Zimbabwe investigating Mugabe’s departure, nor editors to check and verify information sent in by reporters on the ground.”

“Access to free information is supposedly one of the great victories of the internet. But it is a myth,” the agencies argued.

“At the end of the chain, informing the public costs a lot of money.”

This is a doomed idea. First off, if the demands are a pain to implement, news agencies can expect to start seeing referral traffic drop as other news sources not tied to payment demands see their search engine stock rise. If they continue to press for a cut of these companies “billions,” they can expect to be cut off completely. This isn’t hypothetical.

Second, any agency that wants to cut off the search engines supposedly bleeding them dry can always block the engines’ crawlers. But this obviously isn’t about killing off search engine hits and Facebook sharing — it’s about dipping a hand into pockets of service providers for having the audacity to expand the reach of European news agencies.

Finally, there’s nothing in it for news agencies even if they succeed in getting a snippet tax implemented. They see companies worth billions and think skimming a little off the top will put them back in the black permanently. But anyone who knows anything about ad payouts knows CPM “taxes” aren’t the road to riches. In reality, any implemented scheme would involve hundreds of news sites divvying up fractions of cents between themselves for search result impressions. Payouts might be slightly higher for more direct clicks from referrers like Facebook, but at best, new agencies should expect a few bucks a month from a link tax, rather than the thousands (or millions) they envision.

The news agencies supporting this move are complaining about declining ad revenue and think charging platforms for sending them traffic is the solution. This has been tried and it hasn’t worked, but hope springs eternal when you’re all out of innovative ideas.

Filed Under: aggregators, eu, europe, google tax, linking, news, newspapers, reporting, search engines, snippet tax

News Corp's CEO Bizarre Obsession With Made Up Lies About Google

Too Much Free Time

from the stop-drinking-the-koolaid dept

Last year we wrote about News Corp. CEO Robert Thomson’s weird anti-Google rant that seemed quite devoid of facts. It was a odd amalgamation of conspiracy theory and outright falsehoods that fit more in the realm of an angry internet troll, rather than the CEO of a media conglomerate. Apparently, Thomson has continued to let these beliefs fester and has once again gone off on Google and other companies much more successful on the internet in a confused and rambling speech in Australia. The talk, focused on the future of the media industry, starts off with a philosophical discussion about China before jumping into an attack on the internet, which begins mildly enough with some digs at internet companies:

Media companies, too, are looking for their bearings. Here we are in the age of the GPS, of relentless, endless tracking and precisely precise data, and yet some in media are wandering aimlessly, dazed and confused, without coordinates and slouching towards oblivion. We are living in the decade of content distribution, which is not necessarily good for the act of creation. For journalists and newspapers are creationists, not in the biblical sense, but in the creative sense ? I am fortunate to be a custodian in a company that invests in thousands of creative acts around the world each day, great journalism, compelling analysis, feisty blogs, captivating videos and brilliant books, fiction and non-fiction. The question for this creationist is whether my views are anti-evolutionary or anti e-evolution ? already a bit backward and sliding ever more so.

For the distributionists do indeed have powerful distribution channels, Google and Facebook, and pretenders like LinkedIn, which is spam central. None of them actually create content, and they certainly have little intention of paying for it, but they do redistribute the content created by others ? they would argue that such redistribution is a natural extension of their role as social networks. I would argue that much of the redistribution is an unnatural act. But there are broader issues that are still unfolding for media companies, who are themselves struggling to profit from their news and other content, while the distributionists are helping themselves to that content, coopting and corralling audiences and consciously devaluing brands. The supposed idealism of these companies is in stark contrast to their actual behavior. That Google?s newly conceived parent company is to be called Alphabet has itself created a range of delicious permutations: A is for Avarice, B is for Bowdlerize, through to K for Kleptocracy, P for Piracy and Z for Zealotry.

Of course, this gets pretty much everything wrong. They’re not distributors, they tend to be marketing vehicles. And there are all sorts of things that are just silly about this. After all, News Corp. itself has a rather long history of building or buying its own aggregation tools that tend to be a lot more aggressive than the Googles or Facebooks of the world. Oh, but nearly all of News Corp.’s attempts have flopped.

The reality, it seems, is that Thomson is jealous that Google and Facebook have succeeded in building services that people find useful, whereas News Corp. has failed. So he lashes out claiming that they’re “pirating” or “stealing” content, and “redistributing” it. But that’s not what’s happening at all. Google is a search engine, it’s helping people find more content. And, as a recent study in Spain showed, when Google News pulled out it harmed the news industry, rather than helped it. It took away traffic and hurt ad revenue.

What kind of person slams a company that increases his company’s revenue and increases his company’s visibility?

Apparently, the chief exec of News Corp., Robert Thomson.

All of this seems to stem from a simple bit of (willful?) misunderstanding. Thomson keeps claiming that Google and Facebook are somehow “distributing” News Corp. content. But they’re not. They’re helping people promote it or find it. And they’re very successful at doing so, and that’s the real problem. Thomson is jealous of their success.

It should be reassuring for news organisations that the distributors have suddenly started to realize that the quality of content is important, particularly as they try to build walled gardens ? though it should be noted that the Chinese discovered that even a Great Wall didn?t work. The spammers at LinkedIn discovered that CVs are only burnished occasionally and anyone who tweaks their CV a few times a week is probably not worth hiring. Anyway, they now see themselves as a news distributor, and news organizations who cozy up too closely to them are guilty of techno trendiness. It is patently important to be aware of the trends but a grievous sin to be too trendy.

Whatever you might think of Linkedin or its recent strong push into being a content platform, this seems like a weirdly inappropriate insult for a major media company boss to be making. First of all, I think most hiring managers would strongly disagree with Thomson’s suggestion that Linkedin isn’t useful as a tool for hiring people. These days it’s one of the first places people go. Is Thomson so out of touch that he doesn’t realize this?

And we are entering a new phase of development by the big distribution networks, a phase in which they are not only appropriating content but deciding what content is appropriate and inappropriate. They are appointing editors not to create but to curate. And these curators tend to have a certain mindset, a deep fondness for political correctness, and a tendency to be intolerant of ideological infractions. Silicon Valley is moving from the PC to being a purveyor of the PC.

Huh? First off, anyone looking at this with any sense of reality would note that News Corp. has a much longer history of acting as a gatekeeper, greatly limiting what content it feels is “appropriate” for people to see. Google and Facebook are quite different, opening up a much broader sense of content to the world. Are there reasonable concerns about algorithms choosing what content you see and things like a “filter bubble”? Sure. Absolutely. But comparing that to News Corp. of all places doesn’t make News Corp. look very good. Remember, this is the same company who turned the tag line “fair & balanced” into a punchline. For the CEO of that company to argue that Google and Facebook are somehow curating content in one direction is… well… ironic.

Of course, what it really comes down to is the fact that Thomson doesn’t like the political sensibilities of the people who run these tech companies:

This transition is already underway. The stream of content is often a flow of soft-left sensibility, a stream of content consciousness in which genuine debate is in danger of drowning and alternative views rarely surface. This profound movement is taking place, and without much serious discussion of the social consequences.

Newspapers have always been a little unruly, but they are characterised by public debate, wrangling, haggling, arguing, sometimes passionately about issues and consequences, about the impact on societies and on people. The philosophy, the point of great newspapers is clear. But now we have the exponential growth of purportedly neutral platforms built by e-elites that will be far from neutral, far from objective, succumbing to a stultifyingly samey subjectivity and sensibility.

Again, remember that this is all coming from News Corp.. If he really feels this way, why not just build a competing platform that has News Corp.s’ political “sensibilities.” After all, isn’t that what the company did with Fox News? Why not do that online and see how it works? That’s what’s nice about the internet. Anyone can build anything and see if it works.

After some more whining about how those darn “lefties” are running Silicon Valley, he goes back to attacking Google over “intellectual property” issues that he doesn’t seem to understand.

More relevant to our discussion is the digital divot; the deficit in reporting resources created by the egregious aggregation of news by distributors for whom provenance is an inconvenience and who are contemptuous of copyright. The words Intellectual Property don?t appear in the Google alphabet. Without proper recognition, without proper remuneration, well-resourced reporting will be ever more challenged. When I arrived in Beijing, many a US newspaper had China correspondents ? now some of those papers no longer exist in printed form.

Mismanagement played a role, as did journalistic hubris, but the digital age has been hostile to investment in reporters and reporting. Why pay professionals when you have UGC, user-generated content? And why pay when you can purloin?

Except, again, none of that is accurate. Google, for one, seems to bend over backwards going above and beyond what’s required by law to appease Hollywood and firms like News Corp., only to find them still wanting more or plotting against Google. And, it’s funny that this speech comes the very same week that Comcast plowed $200 million into Vox Media at a $1 billion valuation and Buzzfeed’s financials leaked showing a healthy, growing business that’s investing heavily in editorial.

In other words: it appears that online reporting is actually doing pretty damn well in certain areas — just not those where News Corp. is acting — once again highlighting the company’s long history of driving internet properties into the ground.

Also, we’ll mention (yet again) the study in Spain, noting that Google was helping news publishers make more money and get a larger audience by promoting stories for free. It takes quite a bit of confusion to spin that as being “hostile to investment in reporters and investing.”

It’s just factually wrong.

If this is the visionary running News Corp. and planning for its future, it seems like News Corp. is heading in the wrong direction.

Filed Under: aggregators, internet, robert thomson, search
Companies: facebook, google, linkedin, news corp

Austria Wants To Bring In Google Tax For Snippets — Including Single Words

Copyright

from the how-low-can-you-go? dept

Here on Techdirt, we have been following with a certain bemusement attempts by a number of European governments to bring in laws that would grant newspaper and magazine owners a special “ancillary” copyright over snippets — actually a thinly-disguised attempt to tax Google. Despite the miserable failure of this ploy, Austria has decided it wants to join the club, as reported here by the Initiative Against Ancillary Copyright site:

That’s something of an understatement.

Assuming Austria goes ahead and brings in this change (it’s currently a draft amendment to the country’s copyright law), it will surely learn the hard way that it doesn’t help publishers. What’s more worrying is that there is an amendment (number 204 – pdf) to the proposed revision of the EU copyright directive, that seeks to bring in this crazy idea across all 28 member states:

There’s an important vote on Tuesday that will determine whether that amendment is adopted, along with some of the hundreds of others that have been proposed. Let’s hope that the European politicians bear in mind how badly the idea has turned out every time it has been tried before.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: aggregators, ancillary, ancillary rights, austria, copyright, germany, google tax, snippets
Companies: google