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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Regulating The Internet? Not the Tubes Themselves…

If Net Neutrality is an argument about economics (and federal administrative law), Content Regulation is an argument about ethics and culture.

Net Neutrality is becoming an old hobby horse for a lot of people. It gets a lot more attention than most telecommunications policy issues. Even though questions about copper wire lines vs fiber optic cables actually affects more people, the internet is generally united by the fact of its own existence.  This is about regulation at the highest level, determining the equality and/or equity of access to content. No one online is indifferent to the internet—the only debate about net neutrality is which policies are best for the consumer and the telecommunications marketplace (or, in the United States, “telecommunications marketplace”).

But there is another layer of regulation that is quickly gaining attention. If Net Neutrality is about the form of the internet (its structure and broad organization), there is a growing need to consider questions about the regulation of the content of the internet. Over the years, the internet has been a vector for some amazingly good and amazingly bad actions by humans. The differences in the kind of regulatory concept at play are hard to understate. Rather than comparing it to different video games, I would compare it to the difference between a video game and a tabletop game.

1) I’ve always been fascinated by the dawn of the computer age. My childhood was the tail-end of a world in which homes did not have internet access. By the start of law school, everyone looked up famous cases and Latin phrases on Wikipedia during class (except for the people who did the reading the night before- they looked it up before class). I’ve often compared the early days of the internet to a kind of Wild West setting: a lawless frontier where fundamental questions about the mold of civilization were not yet settled. I thought most of those questions would be settled by 2015. We are not close to a consensus on rules. Indeed, we are still testing what types of rules are feasible or desirable.

Video games are literally made of rules: the computer code that constitutes the game itself. Tabletop games are made of… usually cardboard, or some kind of paper. (Occasionally, they have some plastic – or even metal if you got the collector’s edition.) This may sound like a silly or vacuous distinction, but it has important ramifications for the kinds of problems that can happen in a game, and the kinds of solutions that will (or won’t) be effective.

2) Lawlessness can lead to problems. This was probably not known until 2 decades of unfettered internet, but now we know. Free to do anything, people have tried very hard to do everything. Every app, platform, hosting site, game, or program online that gets big enough eventually starts to experience just about every problem type that humans can present. From intellectual property disputes to death threats, from fraud to manslaughter, the internet has been a way for people to discover criminal behaviors that past generations could never have the opportunity to access. The unethical choices of both multi-national companies and village simpletons are available for repeated viewing.

In a video game, the code can sometimes glitch and create problems for players. The code can also execute perfectly, but there may be complaints about the design of the game itself (a level being too difficult or some power or tactic being of an unsuitable level of power). With some difficulty, players can cheat by actually breaking the code, but more games can detect this (and especially so in professional e-sports settings). In a tabletop game, anyone can cheat, the rules may be wrongly applied (or not applied at all), and all manner of chaos can ensue. DDoSing an opponent during a game might be a little bit akin to literally flipping a table during a game of Monopoly or checkers,

3)  YouTube’s takedown system is already an example of an effort to regulate content, and it already shows some of the challenges with instituting a content regulation system: people will find ways to game that system. Any system of regulation will have two negative outcomes: it will penalize the innocent, and it will be dodged by the guilty. The most you can hope for is that it will protect most of the innocent and it will penalize most of the guilty. The US justice system, even when working as intended, will sometimes produce undesirable results: a guilty person will go free, and an innocent person will go to prison. The hope is that this happens very infrequently.

The most common reaction to bad behavior online has been for authoritative parties to do nothing. The most common reaction by authoritative parties to actually do something has been to ban the bad actor. The most common reaction to this ban is to come back with a different username or account.

In video games, cheaters are often banned (if they are making the game worse for other players). But in table top games, people who ruin the game are just not invited back. No one will play with them anymore. People might hang out with someone less if they behaved in a wildly unacceptable way during a casual weekend game of Risk or Werewolf. In a video game, bad behavior has very limited consequences. In a tabletop game, bad behavior can have lots of meaningful implications.

 

4) What would it look like to regular content? Getting it wrong is easy — which is the primary reason that’s what’s going to continue to happen. Whether trying to penalize criminals or regulate behavior online, creating a fair and ethical system that consistently produces more good results than bad ones is difficult. One problem is that incentives are at odds: most platforms want to turn a profit, and if bad behavior yields a net gain, the platform needs a solution that will actually make more money than the current bad behavior (plus the cost of implementing the remedy). Another problem is that platforms tend to think of regulating their content the way that most Americans think about regulations: an appointed governing authority (or combination of authorities).

 

Conclusion

You can’t make people be good, but you can keep deleting all of their manifestations of their behavior on the internet: You can suspend or ban accounts, and eventually IP addresses. You can automatically censor strings of characters, and continually update the list of banned strings. These will continue to be the solutions offered, and they will continue to mostly fail while they almost half-succeed.

Over a decade ago, Lawerence Lessig asserted that laws are of four types: market, cultural, legal, and architectural. It turns out that enforcing the legal type of law in a digital space is very difficult. But cultural norms practically enforce themselves. And architectural laws are always already enforced. Market rules can be fickle, but persuasive. A lot of efforts to regulate content will fail because they will hinge on the concepts of legal enforcement.

The lack of rules and regulations is what made the internet a place where amazing things could happen. Without rules to stop imagination and creativity, people created art, solved problems, built positive communities, and enriched themselves and each other. In that same landscape: without rules to stop hate and anger, people created harassment and bullying, invaded privacy, ruined lives, occasionally killed people, and destroyed a lot of good in the world. Lawless frontiers are the best opportunity for the most beautiful, important, and inspiring expressions of humanity. They are also the best opportunities for the most despicable, dangerous, and damaging expressions of humanity. What the internet becomes will be decided—has always been decided—by what people bring to it.

Watching Over Media and Brands, Part I

More than any game I’ve ever seen, Overwatch is a multi-media, total brand experience. The trailers for the game could compete with Pixar shorts in every respect. The game is supplemented with comics, toys, and a professional eSports scene. It sets new industry standards in showmanship, advertising, and storyline. This is a lot more than just a video game. This is the new model for integrating a concept across every medium and platform to reach every possible audience in every way. This isn’t just the new benchmark in video games. This is the blueprint for every successful future entertainment product. Blizzard understands “today’s media landscape” as more than a business-boardroom buzzword. Other industries also have successful examples of dominating multiple platforms, though none quite on this scale.

Today’s musicians can’t get away with merely releasing music. They need to tweet and vlog, and most crucially, they need to do live performances. Katy Perry recently set the record as the most followed person on Twitter, even though publishing 140-character quips was never in the job description of a musician or a pop star. Similarly, writers can’t just write books anymore- they need to write about their writing, and then talk about writing about their writing with other writers who want to talk about talking about writing. John Green aspired to be a writer when he took a job doing data entry at a publishing company. At the time, he didn’t hope to become a transmediaplatformleader-we-don’t-have-a-word-for-this-thing. However, his understanding and use of YouTube and Twitter allowed him to promote his young adult fiction beyond what a traditional book publisher would imagine. His new media fed his career in the old media, and vice-versa. (And compared to Twitter and YouTube, video games are old media.*)

Movies won’t succeed just by creating more epic battle scenes in 3D to justify the expense of going to the theater. They need to change the experience in more fundamental ways- they probably need a smooth integration of social media, but they also need some interaction the viewers can’t get outside the theater. They need to learn what Prince knew: you can’t get the live-show experience sitting alone in your home. One way movies could adapt to the 21st century is to turn an evening at the movies into a kind of social event, akin to a concert, sports game, or convention. Another way is to make it an even more technologically-driven experience, with augmented reality or virtual reality – a kind of entertainment-themed, futuristic, individualized experience like a museum or library. That is a lot more expensive, though, and all of the theaters near me just spent a lot of money upgrading their seats.

The media channels of the 21st century aren’t just more avenues for information – they are layers of information interacting with the other layers. Television programs and movies also have to adapt to the way consumers use the newest technology. Adaptation looks like spreading out- growing to cover a larger area – but it’s also about moving to new places entirely. Entertainment has to infiltrate and flow through multiple channels. It also still relies heavily on sponsorship in many cases, which means advertising also has to be integrated across these media.**

There are other ways of adapting, such as just adding alcohol to a bookstore.  Don’t rule anything out, I guess. Especially if you don’t think anyone under 21 even knows about your store or your product, anyway.

 

 

*Not that video games are mainstream yet. My Facebook newsfeed recently informed me that Torbjorn was set to be “‘nerfed’ for consoles in future update.” The word “nerfed” was in quotations, which tells me that mainstream journalists don’t know what it means and don’t think it’s a word. (Or they’re very conscious about not genericizing Hasbro’s trademark, even though that trademark is, strictly speaking, in all-caps.)

**The alternative to advertising is some form of upfront pay-to-play, which is what Overwatch did.