Last year I was producing the live streaming of the Ojai Music Festival and we decided to use YouTube to carry the streams. In a small outdoor venue, the number of seats is limited to a few hundred, and streaming the concerts greatly increases the number of people who can hear/see the concerts. Typically, in the 48 hours after the stream, the audience about doubles the number who saw it live.
But about an hour after I had archived the first concert, we got an infringement notice from YouTube, saying that a copyright claim had been made on performances from the first concert. The recordings we had supposedly stolen were by performers who hadn’t performed in the concert, but who had recorded the Varese and Ginastera pieces we had streamed.
There was an appeal process – some forms to fill out, some declarations to swear to, and complaints to make – but in the meantime YouTube had taken it upon itself to “monetize” our content by sticking big ugly banners across the screen. Should we win our appeal, the banners would be removed. More dire, a couple of the streams were under threat of takedown instead of being cluttered with ads. I appealed of course, and a few days later the banners had been removed and the threats of takedown rescinded. But. The claims of copyright violation were repeated for every concert and for almost every piece of every concert, necessitating the same annoying appeal process.
Of course what had happened was that Google uses a content bot that compared the music of every stream and upload to a copyright database, and automatically sent violation notices to every “offender” it detected. This is what can happen when we let machines police content, and okay, the algorithm needed some tweaking, but in the meantime, the burden of proving our rights had shifted to us rather than someone making a specific violation claim.
Then there is the case of photographer Carol Highsmith, who had donated all her photographs to the Library of Congress.
Last December she received a claim from Getty Images demanding $120 for her use of one of her own pictures. The image licensing company had apparently been sending licensing demands for the photographs – which it didn’t own – to others who had used Highsmith’s work. She’s suing for $1 billion based on a damages formula.
Why would Getty take on a beloved populist like Carol Highsmith? Probably because a robot did it. Their bots don’t know the ins and outs of how their images were acquired: All they do is relentlessly sweep the Web looking for watermarks, or however else they are trained to recognize proprietary imagery. The bots send an alert to a legal department, which sends out a standard letter. They are sending letters all day, every day. Most are just intended to serve as warnings or tests – it is well known that if real lawyers actually fight back against the big archives, they will often back down.
But this is actually a bigger problem that the battle-bots. For a year I’ve been collecting stories of Facebook’s takedowns of artists’ postings when through whatever formula they operate from the posts are considered violations of FB rules. And there’s the case of critic Dennis Cooper’s blog which Google suddenly seems to have deleted from the internet, causing much consternation in the literary world. Despite numerous attempts to contact Google to even find out what the violation was, Cooper was unsuccessful for weeks. And was it actually deleted? By what right? Google wouldn’t say, other than its terms of service had been violated. Did Google actually own the work or did Cooper?
As concerning is the fact that Facebook, by virtue of its ubiquity, has convinced prominent news publications to start publishing directly on its platform. In the short term this probably rewards with more readers. But publishers who take the bait have ceded control of their content to someone else’s platform, someone whose algorithms for what content gets served to whom and when and how often are ever-changing and not transparent. Control of their own platforms has arguably been publishers’ most potent power, and our news organizations are essentially giving it up for a few extra clicks (okay, a lot of extra clicks).
To paraphrase an old maxim – he who controls the printing press controls the world.
I’m not imputing nefarious motives to these companies (other than the self-interest of pursuing profits). But no matter how benevolent the company, it ultimately holds control over other people’s work, whether creators realize it or not. And for the moment at least, there appear to be no rules other than a copyright law designed for a different era.
We used to have a system for protecting content that was policed and enforced by our copyright laws. It wasn’t a particularly good system, but enforcement was at least an issue of public policy. Now that system has been effectively overtaken, privatized, to be policed by machines and algorithms under opaque rules determined at the whim of private entities who derive their power not really from laws but from their vast scale. The question for artists and journalists – for all of us – is are we content to cede control of the 21st Century printing press to these tech giants with no public accountability?
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