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The TAZ, Pirate Utopias and YouTube’s Obsession with Safe Harbors
“[A]s you begin to act in harmony with nature the Law garottes & strangles you – so don’t play the blessed liberal middleclass martyr – accept the fact that you’re a criminal & be prepared to act like one.”
Hakim Bey from “T.A.Z.: The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism”
YouTube’s CEO Susan Wojcicki is frantically wheeling around Europe this week in a despairing effort to establish a US-style safe harbor in Europe and undermine Article 13, the Copyright Directive for a Digital Single Market.
Let’s understand that the very concept of a safe harbor for YouTube has its roots deep in the pirate utopias of Internet culture–a fact that may get overlooked if you aren’t a student of the Silicon Valley groundwater.
The Value Gap really owes its origins to the anarchist Peter Lamborn Wilson who wrote the seminal text on pirate utopias under the nom de plume “Hakim Bey” entitled “The Temporary Autonomous Zone, Ontological Anarchy, Poetic Terrorism” (1991) or, as it is known perhaps affectionately in hacker circles, simply “TAZ.” I for one am not quite sure what makes “poetic terrorism” different from unpoetic terrorism, utopian terrorism, anarchic terrorism, or just plain old terrorism, but it may explain why YouTube just can’t bring itself to block terrorist videos before they find an audience.
But the TAZ helps illuminate my own more truncated term for the Value Gap–the alibi. An alibi for a pirate utopia where the pirates run cults called Google and enrich themselves from the prizes they go a-raiding.
In the early days of online piracy there was a fascination with locating servers in some legal meta-dimension that would be outside of the reach of any law enforcement agency. Sealand, for example, captured the imagination of many proto-pirates, but Sealand is a little to clever to put themselves in a position requiring evacuation by the Royal Navy before the shelling begins. So Sealand was ruled out.
Instead, Google–largely through YouTube–created its own pirate utopia through manipulation of the DMCA safe harbor, one of the worst bills ever passed by the U.S. Congress–and that’s saying something. Google busily set about establishing legal precedents that would shore up the moat around their precious TAZ. None of Google’s attacks on government should be surprising–anarchy is in their DNA. As former Obama White House aide and Internet savant Susan Crawford tells us:
I was brought up and trained in the Internet Age by people who really believed that nation states were on the verge of crumbling…and we could geek around it. We could avoid it. These people were irrelevant.
And “these people” were stupid enough to give a safe harbor to protect the TAZ. Because here’s the truth–the safe harbor that has made Google one of the richest companies in the world while they hoover up the world’s culture actually is the quintessential temporary autonomous zone. It only exists in a changeable statute and the judicial interpretations of that statute, whether the DMCA or the Copyright Directive. And like HAL in 2001: A Space Odyssey, they’re not going to allow that disconnection without a fight.
But YouTube’s CEO Susan Wojcicki will not be singing “A Bicycle Built for Two” as she flails about in the disconnect of YouTube. Her basic argument is that “imposing copyright liability is destructive of value” for “open platforms” like YouTube. “Open platforms” bear a striking resemblance to the TAZ, yes? Ms. Wojcicki , of course, purveys a counterintuitive fantasy because unauthorized uses for which copyright liability accrues is what destroys the value of the infringed work. What Ms. Wojcicki is harping about is how copyright infringement destroys value for YouTube and its multinational corporate parent, Google. This is what happens when stock options invade a pirate utopia.
Not only has she got it wrong, but what she is actually whingeing about is the threat posed to her YouTube pirate utopia by the Copyright Directive and the united creative community. And as HAL might say, the YouTube mission is too important for me to allow you artists to jeopardize it.
What’s the Agenda at @TheAgenda?
Google’s European charm offensive on “Article 13” has come to Canada in search of earned media. They got it last night on a previously-credible news show called The Agenda in the “Struggling Artists and Copyright Rules” episode. (For readers outside of Canada, the Agenda is one of the top news magazine television programs in Canada, hosted by the erudite Steve Paikin.)
Both Canada and the European Union are going through very different copyright reform policy revisions which could not be more different, but The Agenda was determined to hold up Big Tech’s objections to the European Copyright Directive as some kind of example for the Canadian review of its 2012 Copyright Modernization Act which is being conducted largely in the normal course as required by statute.
By contrast, the Copyright Directive for the Single Digital Market (often called “Article 13”) bears little resemblance to the Canadian review.
If you watched The Agenda last night with the EFF’s Cory Doctorow, the Canadian science fiction author, and Canadian artists Miranda Mulholland and Donald Quan, you really would not have much of an idea.
I’ve actually appeared on The Agenda and was very impressed with the amount of objective preparation the show’s producers put in and the thoroughness with which they approached the subject. This kind of staff work is critical to preserving Steve Paikin’s credibility and how he conducts interviews with multiple persons, sometimes phoning in from out of the studio.
Given my experience with the program, I was quite taken aback by the sloppiness of the questioning that verged on propaganda from multinational corporations at several moments despite Miranda and Donald’s best efforts. What I saw was the complete opposite of my own experience. Here’s a few examples, more to come.
—Julia Reda represents Germany in the European Parliament? Let us be clear—Julia Reda may have a German constituency, but Julia Reda hardly “represents Germany” if the implication is—and I think it was—that Julia Reda’s views are representative of Germany as a whole. She is the sole Member of the European Parliament from the Pirate Party and her views are not only very pirate, but were also voted down by substantial majorities.
—the use of neuvoo.ca, which appears to be a crowd sourced job site as evidence of creator “annual income”. I’ve quickly looked over the neuvoo site and can’t find the name of a live person attached to it, so we don’t really know much about it. The site appears to be aggregating job postings from other sites (like Uber), so I’d really like to see the methodology. Having said that, the neuvoo annual income numbers (like $61,798 for a writer compared to the Writers Union of Canada number of $9,380) seem greatly inflated and counterintuitive. If there’s a good reason to believe a job aggregator as opposed to the union representing job categories, I’m all ears. But the real question I have is why The Agenda didn’t use government statistics as the comparison, or at least mention some of the research work done by the industry or other countries or cities (such as the Austin Music Census).
—the failure by Steve Paikin to mention Cory Doctorow’s long time involvement with the Electronic Frontier Foundation. The EFF lobbying group was not only disclosed by Google in court documents as a recipient of corporate donations but benefited to the tune of $1 million in a cy pres award that is of the type that is currently under review by the United States Supreme Court. Google, of course, is on Julia Reda’s side of the Article 13 vote and is today lobbying the European Parliament against Article 13, making many of the same arguments as Cory Doctorow did on The Agenda.
We’ll be looking into this deeper, but it doesn’t take much of a cynic to question why Steve Paikin would allow his program to be coopted in the effort to oppose Article 13. I for one don’t believe Mr. Paikin is that kind of guy, and I think that he’s very careful about being used. I know he certainly was careful when I was on the show.
This leads one to the inescapable conclusion that either his producer was in the tank for Google or was incredibly sloppy. Either conclusion is equally unfortunate.
We’ll come back to this soon.
Save the Date: Nov. 28 Music Modernization Act at the Dallas Bar Association
If you’ll be in Dallas, Texas on November 28, I will be discussing the Music Modernization Act at a luncheon sponsored by the Dallas Bar Association Entertainment & Sports Law Section. The meeting is scheduled for noon at the Belo Mansion,
2101 Ross Avenue in Dallas.
The talk will focus mostly on the Music Licensing Collective and Digital Licensee Coordinator in Title I, but will also cover the Wyden Loophole in Title II for pre-72 recordings.
More information on the Dallas Bar Association site.
Read Highlights of Managing Change Under the Music Modernization Act’s Music Licensing Collective in the current issue of the Texas Entertainment & Sports Law Section Journal.
Preserving the Bond
France can be deceptively cold and really rather miserable in the late fall. This can be particularly true of the French mountains and the Vosges Mountains are no exception. They’re not particularly high mountains by comparison to Colorado, but they’re high enough to feel the altitude if you’re used to living at sea level.
A strategic fact about the Vosges Mountains is that towns like Bruyères and Biffontaine are about 75 miles from Strasbourg, and Strasbourg is a stone’s throw from Germany. And that’s where the 1st of the 141st (First Texas), a unit of the 36th Infantry Division (T-patchers), was heading in late October 1944 when they ran into the 244th Infantry Division of the German Army and other German units.
The Texans had fought their way through North Africa, Sicily and the Italian invasion, but got surrounded in the Vosges. They were cut off from resupply or reinforcements to the extent that they had to be supplied by air drops because no one could get to them. Vastly outnumbered, the 442nd Regimental Combat Team was ordered to rescue the Texas outfit.
In the Battle of Bruyères, the 442nd continued to distinguish themselves in brutal sacrifice for their brothers in arms. As Daniel Inouye told the story, the 442nd lost more men than they ultimately rescued. But let the citation of Barney Hajiro of the 442nd speak for him and his brothers:
For The President of the United States of America, in the name of Congress, takes pleasure in presenting the Medal of Honor to Private Barney F. Hajiro, United States Army, for conspicuous gallantry and intrepidity in action above and beyond the call of duty while serving with Company I, 3d Battalion, 442d Regimental Combat Team, attached to the 36th Infantry Division, in action against the enemy on 19, 22, and 29 October 1944, in the vicinity of Bruyeres and Biffontaine, eastern France.
Private Hajiro, while acting as a sentry on top of an embankment on 19 October 1944, in the vicinity of Bruyeres, France, rendered assistance to allied troops attacking a house 200 yards away by exposing himself to enemy fire and directing fire at an enemy strong point. He assisted the unit on his right by firing his automatic rifle and killing or wounding two enemy snipers. On 22 October 1944, he and one comrade took up an outpost security position about 50 yards to the right front of their platoon, concealed themselves, and ambushed an 18-man, heavily armed, enemy patrol, killing two, wounding one, and taking the remainder as prisoners. On 29 October 1944, in a wooded area in the vicinity of Biffontaine, France, Private Hajiro initiated an attack up the slope of a hill referred to as “Suicide Hill” by running forward approximately 100 yards under fire. He then advanced ahead of his comrades about ten yards, drawing fire and spotting camouflaged machine gun nests. He fearlessly met fire with fire and single-handedly destroyed two machine gun nests and killed two enemy snipers.
As a result of Private Hajiro’s heroic actions, the attack was successful. Private Hajiro’s extraordinary heroism and devotion to duty are in keeping with the highest traditions of military service and reflect great credit upon him, his unit, and the United States Army.
The 442nd was the most decorated unit in the history of the U.S. Army with 8 Presidential Unit Citations, 21 Medal of Honor recipients and 18,143 other medals. Barney Hajiro also received the French Legion of Honor, the British Military Medal and the Bronze Star. And all of the 442nd were made honorary Texans by Governor John Connally.
You can’t be in National Airport in Washington DC for very long (especially on a Friday) without noticing a few enlisted men and women, often Marines, hanging around a gate. If you have the time, you’ll soon see an “Honor Flight” disembarking from that gate and what is often a long line of veterans filing out to sustained and enthusiastic applause from the transiting passengers and staff. The enlisted service members are there to meet the flight and assist the vets in wheel chairs. These flights are often comprised of World War II vets who are visiting DC to view their new World War II Memorial. As some of you know all too well, there are fewer of them every year.
We always think of the 442nd a couple of special times each year as do many others who sent their boys off to Camp Bowie and then to World War II as T-Patchers. It’s easy to say that we owe a debt to the 442nd that can never be repaid, but I don’t think the vets look at it that way. It’s more of a bond that should be preserved by kindness, respect and devotion. Preserving their memory is a recognition of that bond.
Hill 555 Monument, Bruyeres, France
The First Rule of Lawfare: Is Google’s Active Measures Campaign on Article 13 a Trial Run for Election Meddling by a US Non-State Actor?
Well, I wake up in the morning
Fold my hands and pray for rain.
I got a head full of ideas
That are drivin’ me insane.
It’s a shame the way she makes me scrub the floor.
I ain’t gonna work on Maggie’s farm no more.
From Maggie’s Farm, written by Bob Dylan
Google on the Back Foot with the Copyright Directive
Google and Facebook recently suffered a lobbying debacle in Europe over the European Copyright Directive. That legislation cuts back the European version of the what Americans call the DMCA safe harbor. A triumph for artists, Google’s European loss was the worst lobbying defeat that Silicon Valley has been handed in a long time—at least since the SESTA legislation cut back another safe harbor in the U.S. So it shouldn’t be surprising that YouTube’s CEO is trying to influence YouTubers to lobby on behalf of Big Tech—Google desperately needs some human shields, which is exactly what participating YouTubers would be. Once again scrubbing the floor for the House of Google.
At its core, the Copyright Directive cuts back the ability of services like YouTube to profit from infringing activities on their platforms. One would expect corporations profiting from that safe harbor to lobby against it, just like supporters lobbied for it. But Google and Facebook went well beyond simply lobbying by attempting to sow discord and undermine democratic institutions.
And they got caught—red handed. They were caught conducting active measures such as spamming, bot farming and overt messaging campaigns calculated to undermine the legislative process in the European Parliament. You can read about it in a number of leading European publications starting with investigations by both the Times of London and Frankfurter Allgemeine Zeitung.
Google’s Article 13 Lobbying Campaign from Volker Rieck
Most importantly Google supporters like the Pirate Party promised—or more accurately “threatened”—that “constituents” would show up to protest, and very few did. So Google’s active measures campaign lacked a human face—the key component that brought it down.
German MEP Helga Truepel explained why the plenary vote on the Copyright Directive was so lopsided against Google at a press conference : “…[It was] due to this message spamming campaign. I talked to some of my colleagues here [and they] are totally pissed off, cause in the streets there were a maximum 500-800 people last Sunday [at Pirate Party protests]… and we were only deleting emails for weeks now.”
Plan B and the First Rule of Lawfare
Fast forward to today: Google needs a Plan B. Desperately.
Google’s problem today is the Members of the European Parliament (and some members of the UK Parliament) are wise to their jive after the plenary vote. My bet is that story is not yet concluded as it merits a criminal investigation. Because when a corporate covert influence operation is discovered and attribution is certain, it’s hard to put that genie back in the bottle (just like Internet piracy).
But while Google desperately needs a Plan B to retain its safe harbor, publicly acknowledging its influence operation is politically awkward, bread crumbs or no. Like fight club, the first rule of lawfare is that it does not exist.
Google and Facebook are struggling to find that Plan B as the EU lawmaking process continues with the “Trilogue”, the next step to the Copyright Directive becoming national law in the European Union. Google seeks another way to overwhelm the system by finding human shields to mingle with the bots. And that’s where YouTube CEO Susan Wojcicki comes in with her recent appeal to YouTubers to protest the Directive.
Ms. Wojcicki may want us to overlook that Google just got caught running active measures against a democratic institution to meddle in the legislative process on another continent. But members of the European Parliament have not forgotten. She may be able to pull the wool over YouTuber’s eyes, but it just makes her human shields look even more duped and her methods look especially more alarming—if not terrifying—in a post-Cambridge Analytica world.
Safe Harbors, Addiction and Human Shields
Don’t underestimate how important these safe harbors are to Google, Facebook and its fellow monopolists. They were ready to be on the wrong side of child sex trafficking legislation to preserve their other safe harbor (Section 230 of the “Communications Decency Act”)—that surely strained Sheryl Sandberg’s performance as Wendy to Mark Zuckerberg’s “boy who wouldn’t grow up.” These safe harbors are crucial to Google, Facebook and Twitter—because it protects them as they snort up the addictive content and reward (if not sell) views, likes, follows, and “engagement.”
Remember—YouTube is not in the music business, or even in the content business at the end of the day. Google and Facebook are in the addiction business.
In particular the behavioral addiction business (see Irresistible by Dr. Adam Alter). If you’re in the addiction business, safe harbors are very, very important. Just ask the narcotraficantes. And don’t forget—the U.S. Attorney for Rhode Island investigated Google for violations of the Controlled Substances Act that resulted in a $500,000,000 fine and a non-prosecution agreement (not to mention a shareholder lawsuit).
Straight Outta Minitrue
But I suspect it is the embarrassing lack of human shields cited by MEP Helga Truepel that drove Ms. Wojcicki to issue a meandering tl;dr blog post trying to convince “YouTube creators” to fall in with the company line on the Copyright Directive.
Ms. Wojcicki manages to get through her entire appeal without coming clean about the point of the Copyright Directive—YouTube profits from piracy through the safe harbor that the Directive would cut back, especially Article 13. (There’s way more to the Directive than Article 13, but that’s another story.)
She would have YouTubers sign up to the “sky is falling” claims that “the unintended consequences of Article 13 will put [the highly profitable YouTube] ecosystem at risk”. Why? Because “[i]t would be too risky for platforms to host content from smaller original content creators, because the platforms would now be directly liable for that content.”
That is quite a leap—how is it that “smaller” YouTubers would be such a big problem? After all of YouTube’s “advertiser friendly” changes that severely hurt the earning power of many YouTubers, does Ms. Wojcicki really think that YouTubers—a pretty clever bunch on the whole it must be said—are so gullible that they will miss the irony?
And then she says this: “We are committed to working with the industry to find a better way. This language could be finalized by the end of the year [in the Trilogue], so it’s important to speak up now.”
Given the breadth of the coalition supporting the Copyright Directive and opposing Google and Facebook, it’s not immediately clear who is “the industry.” I can tell you that if she includes the music industry in that reference, I can save her some time.
Nobody in “the industry” trusts Google, YouTube, Facebook or Ms. Wojcicki. [Although the beachhead that Google scored with the MMA may make life interesting for publishers and songwriters wishing to protest against the hand that feeds the mechanical licensing collective.]
And, frankly, I’d be surprised if many YouTubers trust her either. Based on the vote supporting the Copyright Directive, there’s a wide swath of MEPs that have severe misgivings about all these Silicon Valley companies trying to run roughshod over Europeans. And then there’s the two and probably soon to be three competition prosecutions against Google by the European Commission. That’s a thing.
Ms. Wojcicki hasn’t learned (and I predict won’t ever learn) a simple truth that every record company and music publisher knows—don’t jack with the talent. YouTube jacks with the talent frequently, so it’s unclear how the talent is going to react to this latest request that they take time out of their day to help YouTube.
It’s not a good look and it will come back to bite. YouTube has been profiting from the safe harbor for its entire existence and wouldn’t know how to make an honest buck if their lives depended.
Is Election Meddling Next on Google’s Agenda?
Before Ms. Wojcicki tries to rally YouTubers as human shields to support Google’s billions on her bot farm, she needs to get her own house in order.
And members of the European Parliament need to get a grip on these active measures campaigns before Google goes beyond “lobbying” on an issue vote and moves on to meddling in campaign outcomes in a few months when the European Parliament stands for election.
In a post-Cambridge Analytica world, we all know it’s a short step from undermining opposition on a particular issue to undermining the election of a particular candidate. And Google is just as capable of meddling as any state actor if not more so.
Save the Date: Music Publishing After the MMA: Valuations, Payments and Collections, Texas Entertainment Law Institute November 8-9 Austin
I’m looking forward to linking up with my friend and veteran music publisher Richard Perna (Lone Wolf, Evergreen) to review the effect of the Music Modernization Act on publishing catalog valuations, payments and collections at the Entertainment Law Institute in Austin on November 8 & 9. The ELI is one of the best entertainment law programs in the country, sponsored by the State Bar of Texas and the Texas Entertainment and Sports Law section.
For more information and to register go here.
Save the Date! NYC Music Business & Law Conference November 16
I’m honored to be included in a panel at the New York State Bar Association’s annual Music Business & Law Conference on November 16 with truly awesome panelists.
11:50am-12:50 pm Music Modernization Act (US) / International Developments
The Music Modernization Act could be the most consequential copyright legislation in a generation. This panel will describe what it does, what it doesn’t do, how it affects current business and legal practices, and its effect on domestic and international copyright holders. Bring your questions.
Panelists:
Marc Jacobson, Esq. (Moderator)
Chris Castle, Esq. – CC Legal Firm and Music Tech Solutions Blog
Charlie Sanders, Esq. – Counsel-Songwriters Guild of America
Alexander Ross, Esq. – Wiggin LLP (UK)
Christine Pepe, Esq. (IP, Music, and Digital Law Consultant)
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Artist Rights Watch
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