EU Directive On Copyright in the Digital Single Market: Three Not-So-Scary Possibilities

When evaluating the EU Directive on Copyright in the Digital Single Market, there are three general categories of outcomes: Little/no impact, Moderate-but-endurable Impact, Apocalyptic/Catastrophic. It turns out that there are pros and cons to each.

NOTE: Here I consider the DCDSM in the context of arts and entertainment, with a particular focus on user-generated content production. I note at the outset that I suspect there is a very different analysis for the impact of this directive on news media and news dissemination.

 

1. Little-To-No Impact

EU Implications

As a directive, this passing of the DCDSM does not accomplish much. The directive is only an edict that member states must pass their own laws that accomplish the general purposes of the directive. The first question the DCDSM poses, then, is how different nations will approach this directive.  Some nations might do very little, passing only milquetoast legislation and then neglecting to enforce it. Other nations may openly and pointedly refuse to comply with the directive, daring the EU to take punitive measures  against the non-compliant nation. Each country will have to decide how to balance the force of the directive (which is, itself, of debatable strength) with the risks of losing access to some major technology platforms.

Each nation is surely aware that there is a question of whether companies would rather cease operations in countries whose requirements are too onerous. Twitter or YouTube may find that the cost of meeting a nation’s copyright requirements outweighs the benefits to the company of continued operations in that nation. There is a bold example of this behavior in recent memory: When China demanded too much from Google with regard to censorship, access to user’s email and other data, Google simply decided to discontinue operations with the largest consumer base in the world. If Germany asked Twitter to pay for each link that users disseminate through their service, Twitter might prefer to avoid that tax by no longer offering Twitter to Germany.

 

US Implications

Another of the looming questions that this directive poses is whether there will be implications for non-EU jurisdictions. When the EU passed a law that increased user data protections, many companies restructured their data privacy systems across all regions. Some companies might consider a similar approach when faced with the DCDSM—it is sometimes easier to structure a business model to meet the highest requirements placed on the business. Many companies have struggled to navigate copyright claims (and data privacy, consumer protection, and advertising laws) in the wild frontier of user-generated content and digital media. They may see new, stringent laws as an opportunity to approach these problems with new tactics—though companies will have to consider whether their tactics will obliterate their business.

2. Moderate-But-Endurable Impact

In some ways, this is the worst for users and the best for large stakeholders.  This outcome keeps YouTube and Twitter afloat, imposes inconvenience and malcontent on users, but the obstacles are just minor enough to navigate. Maybe YouTube and Twitter charge a small subscription fee to cover their increased costs (not unlike Netflix or Hulu). Maybe the large, familiar platforms lose some of their functionality, but not so much functionality that the platform feels entirely transformed. Under this scenario, most of the things that most users do still mostly work, and therefore the overall satisfaction of the user base is only slightly lessened.

 

 

3. Apocalyptic, Catastrophic Annihilation of Social Media As We Know It

Histrionic

People who have the most to lose in the worst-case scenarios are beyond deeply concerned. The reaction of content creators on YouTube seems to be that this is among the worst things to ever happen for their business model. These people consistently cite existing problems with YouTube’s ContentID system and the copyright strike system as the basis for their concern (and moderating content on a social media platform is no easy task), and predict that this law will exacerbate those existing problems. Their reasoning is that YouTube has already demonstrated the challenges involved in trying to regulate copyright claims on YouTube: algorithms get things factually wrong, there is no presumption of de minimis use, journalism and parody uses are rarely recognized, etc.

The Way Forward

The worst case scenario that content creators fear is the death of the major platforms: YouTube, Twitter, Facebook (and subsidiaries like Instagram), will all lose economic viability or become so difficult to use in meaningful ways that users will abandon them, and the internet itself will die as a direct result. I see plenty of alternatives to the death of the internet (that’s something I expect the telecommunications industry to achieve before anyone else), even granting a severe impact to the operations and function of major (and minor) platforms.

A key fact about the internet is that users will always find ways to navigate the new space. The internet is a battleground for a particular kind of warfare: a fight in which new strategies are always being discovered. New platforms rise to replace old ones (no matter what the reason for the death of the last one was).  New methods and systems are born out of the effort to get around whatever obstruction frustrated the users.

Users will find ways to continue their current behavior, working around the impositions of the new laws. Not allowed to Tweet a link? Users will develop a new system for pointing people to information (humans have been creating systems for this purpose for millennia). Not allowed to stream a video game with a song it? Sing over it. Users are creative: successful content creation in the new environment makes creativity an imperative. The large copyright holders may one day (if not this time around) live to regret promulgating too draconian of an edict of creativity.

 

3A. The Backfire Scenario, Or, The Poetic Justice of Getting What You Ask For

“Success is a menace. It fools smart people into thinking they can’t lose.” – Bill Gates, as depicted in Pirates of Silicon Valley

One likely response to the DCDSM is that users will create more of their own content. If using existing content becomes prohibitively difficult, more users will create what they cannot afford. This will have a detrimental effect on the stakeholders who expect to gain the most from the new laws: the rights holders of existing popular works. These stakeholders have felt for decades that the internet was undermining their profits by allowing people to access movies and music without paying for it. As users create original content instead of incorporating these existing works, the works of the larger establishments will enjoy less dissemination and recognition by the public. The audience for these works will shrink as fewer people are exposed to their works. Large corporate stakeholders will need to invest more in advertising campaigns to acquaint the public with their products; they will try to replace what content creators were doing (for free and more effectively) for them.

For most of the 20th century, large corporate rights holders had every reason to think that they were indispensable—that they were the only way that people could access arts and entertainment. The Napster case demonstrated that the internet had the power to undermine their channels of distribution. User-generated content is the current argument that the content itself can also be produced outside of the control of these large stakeholders. If the DCDSM sparks an apocalypse of the current generation of UGC platforms, the phoenix that rises from those ashes is surely the end of the 20th century entertainment business model. In this scenario, users truly leave the large rights holders behind.

 

Conclusion: Probably Not Really That Bad For Art and Entertainment

Everyone will have to wait and see what form the Directive takes as it influences national laws. I think this is the kind of law that the internet is ready to work around. If it has devastating effects on existing platforms and services, I am quite sure that new platforms will emerge that promote entirely original content, unshackled from existing copyrighted content. The emergence of new solutions is the story of the internet.

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How You Play The Game Doesn’t Matter If You’re Losing the Sport.

This year started with the gaming news that Blizzard bought MLG. With Overwatch in beta, Hearthstone and Heroes of the Storm enjoying steady, casual game play, and Warcraft capping off its gaming legacy with a transition to a different medium, Blizzard is in an interesting place to double-down on its efforts to dominate the eSports market.

I’m skeptical of the prospect of Blizzard creating the “ESPN of eSports,” of course. The NFL doesn’t own ESPN. If they did, who would get prime air time when football and baseball season overlap? Blizzard is incentivized to promote their own products over the products of their competitors. I don’t think there’s anything wrong or shameful about that, but it should be pretty obvious that there is a glaring conflict of interest in Blizzard prioritizing between tournaments for Overwatch and DOTA2 (owned by Valve).

 

Games: Sports :: Art: Entertainment. (Remember the SAT? Wait, they removed the analogy section?)

I’ve written a little about the distinction between art and entertainment before. While they can overlap, they really have different goals: art wants to explore or express something about the world, while entertainment wants to sell something (usually itself, sometimes also a sponsor). Games want to be played; sports want to be won.

Games* are meant to be fun in themselves, and they are played well whenever they are enjoyed by the player. Features such as scores and objectives can orient the player within the game, and provide context and direction, but a game need not rely on these features to achieve delight. Playing a game is, at its core, an aesthetic experience**, and how well you are playing can be judged largely by the extent to which you are aesthetically engaged.

Sports might be fun to play, but their raison d’être is “play to win.” The joy of sports is derived from victory, not from the mere act of competing in them. Features like scores and objectives are core to the experience, and their absence would be disorienting and entirely destroy the endeavour. The activity itself doesn’t need to be enjoyable, and there are right and wrong ways to play. A good sport might also function as a good game, but it must function as good entertainment in order to be successful. A stronger delineation between games and sports would allow developers to understand and focus on the proper goals and objectives.

 

2016: The Year of the Mouse?

With the year starting with some esports hype, and steady growth in esports for the last 5 years, will this year be the year of esports? No. It will be a year of esports, but not the year of esports. There are still the same barriers for eSports that Extra Credits noted almost 4 years ago, and an ESPN of eSports won’t solve those problems. Indeed, a true ESPN of eSports (with even half of that level of cultural penetration) can only be possible after overcoming most of those barriers. The photo at the start of The Guardian’s article is pretty telling: the photo itself clearly captures a massive logo that reads “ALL-STARS,” and the caption calls it the World Championship finals in Paris (not to mention that the Paris finals were held theatre-in-the-round style, which the photograph clearly does not depict). It’s a simple, harmless error, but I think it reveals two things about the mainstream relationship with esports at the start of 2016: 1) no one knows about it (to catch simple things obvious to anyone “in the know”), 2) no one cares about it (enough to do simple fact-checking). Esports will grow this year, but I’m not sure how much or in what ways.

EDIT:

After thinking a little more about it, I need to add something: Blizzard has some incentive to promote any eSport, because eSports is still relatively new. The NFL doesn’t get as much value from promoting other sports because most people know about traditional sports, which have over a century of history. Perhaps Blizzard could promote competitor’s games on the theory that “a rising tide lifts all ships.”

*Philosophers of Language have talked about the difficulty in defining a “game.” Wittgenstein also outlined a theory of language that treats language as a game, in which words are pieces within the game, and their meanings are the moves a piece can perform.

** Kant’s philosophy of aesthetics centers on the concept of “play” between the mental faculties of reason and imagination.

The Transition From Art to Entertainment: Copyright’s SystemFailure()

Transistor is really, really beautiful. Through every minute of play, I truly enjoyed the graphics, the game design, the story, the characters, the artwork—I even have the soundtrack on my iPod. It has some astonishing aesthetic quality. All of that said, I did not particularly enjoy playing it. The combat was awkward and annoying, the customization feature was poorly explained, and I never felt like I’d really accomplished anything more than some bothersome errands.

Transistor succeeds magnificently as a work of art. It fails as a piece of entertainment.

I’ve talked about games as art before, but I think a distinction between art and entertainment can help explain the perverse twists of copyright law we see today. One analysis of the current state of copyright is that it has not kept up with time, and even the DMCA provisions fail to bring copyright law fully into the digital era.

I.

Entertainment is marked by an ultimate aim at financial gain. Entertainment needs money. For this reason, it is often symbiotic with advertising. It is frequently exploitative because it needs attention to thrive. It fails when ignored and succeeds when it sells.

Art wants to be enjoyed (or sometimes it only wants to express its artist). Art is probably the origin of entertainment, but art does not require the financial success that entertainment seeks. Art can be evaluated on aesthetic terms of beauty or expression, rather than ticket sales or ad revenue.*

II.

Copyright law is meant for entertainment, not art. Art does not have the same legal concerns that entertainment has because it does not have the same financial concerns. In the US, copyright law focuses largely on economic questions, not moral questions (as it is in Europe). The treatment of damages (money you can get if you win in court) in copyright law makes sense for large entertainment entities (e.g., movie studios or record labels) in the 20th century, though it makes hardly any sense when applied to small-scale artists and typical citizens in the 21st century.**

Most copyright laws are enforced at the discretion of the rights holder, and artists often decline to enforce their rights the way that entertainment companies do (though one reason could be the cost of enforcing those rights, rather than a desire to enforce them).

III.

Judges have always made a pointed effort not to make aesthetic judgments while applying the law. This means that both bad art and bad entertainment get the same legal rights. It also means that the law will not distinguish between art and entertainment.

Understanding this difference between art and entertainment makes sense of why an area of law is applied vigorously by some people and ignored by others. It also explains why smaller artists are less favorable toward many parts of copyright law while large studios are stronger proponents of strong copyright law.

Transistor is a good case study for illustrating this distinction. It is a game made and produced as entertainment, but it acts and feels more like art. I’m sure Supergiant studio would protect it as entertainment, as would SuperGiant Games and distribution services like Steam. And under US law, that’s fine. Just because something is artistic doesn’t mean it should be subject to piracy or hampered from monetization. But it’s worth remembering that the copyright law isn’t about protecting the artistic integrity or beauty of Transistor’s sounds and images—it’s all about protecting its potential to maximize profits.

Too many discussions around copyright law and reform fail to address this fundamental difference in the genus of media. Recognizing this distinction could make discussions about copyright (and copyright reform) much more clear and productive, and would help in presenting the issues at stake.

*Obviously, these traits can overlap and diverge: a work can be artistic and commercially successful, and a person can have goals of creating something beautiful and charging lots of money for it. However, a work can be evaluated independently under both of these categories.

** One of the exciting effects of networked digital technology is that it made the entire area of copyright law suddenly relevant to the bulk of the population (who previously had very little reason to think about it).

Mainstream Sponsors for e-Sports Begin to Arrive!

I’m excited by the concept of eSports. The very idea of watching competitive video game playing is so delightfully bizarre and futuristic- and I am awestruck every weekend when I watch professional gamers play. I am mostly enthralled by the social dimension of it- seeing announcers and crowds get as excited and wound up over a video game as others would get over physical sports (e.g., baseball, football, hockey, etc.). I am excited, then, to see a few “mainstream” companies (rather than niche video game peripheral companies) signing on to sponsor eSports teams: Nissan, Samsung, and Pringles.

The biggest question with eSports is whether it’s a passing fad or whether it will come to be a long-standing, mainstream form of entertainment (or even whether it will match or surpass traditional sports entertainment). I’m still not certain that eSports will rise to the level of traditional sports, but I think companies that invest in sponsorships will see rewards on par with the sponsorships of traditional sports.

Videogames: The medium that makes you proud.

I saw a video on youtube in which a comedian mocked the point that no medium other than video games denies a part of itself to you if you aren’t good enough at it. I have two responses.

First, most media do deny a part of themselves to you if you aren’t good at comprehending them. This works on two levels: For one thing, you have to actually pay attention to what’s going on. People who try to multitask or lose interest in, say, a film are the ones asking me ¾ of the way through “What’s going on? Why did that character do/not do that thing?” For another thing, if you fail to think critically about the movie, you miss larger messages and ideas and themes the movie has. This goes for other entertainment media as well: my 11th and 12th grade English classes demonstrated to me how much depth there could be in a book, and how devices from syntax to imagery can add substance to the book not explicitly stated on the pages. If you aren’t good at reading, watching, or listening, the medium denies you its full meaning and significance.

Second, Todd Howard (in last year’s D.I.C.E. keynote) pointed out that video games allow players to feel pride. People are rarely “proud” after reading a book (unless it was excessively long or written in a way difficult to get through), or watching a movie or listening to an album. Everyone feels good after beating a hard level or solving a puzzle or overcoming a challenge. Bad video games “deny” themselves to you if you “aren’t good enough.” Good video games help you and motivate you to use the tools you have to overcome a challenge and be rewarded with what you seek (great story, more killing, new puzzles, etc.) If video games did not offer a challenge, there would be no potential for pride.